ti ' UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBIURY UNIVERSITY OF CALIFORNIA LIBRARY Los Angeles This book is DUE on the last date stamped below. SCHOOL OF LAW LIBRARY UNIVERSITY OF CALIFORNIA LOS ANGELJES i % 500D WILL" NOT TAXABLE. INDIANAPOLIS, June 2S.— The , "good will" of a business cannot be taxed under the Indiana law, accord- mg to the decision o.f the Supreme Court in the Indianapolis News case. T^he valuation of tangible property as irned for taxation had not been stioned, but the State board hal auued a large sum for good will anc for value of the Associated Pr- franchise. When the paper re'' to pay, the State board sued, ' the State Auditor, to collect K L CAaa^Aa^ University of California SOUTHERN REGIONAL LIBRARY FACILITY 305 De Neve Drive - Parking Lot 17 • Box 951388 LOS ANGELES, CALIFORNIA 90095-1388 Return this material to the library from which it was borrowed. OTHER WORKS of OSCAR T. SHUCK California Scrap Book, 1868 Representative Men of ttie Pacific, 1870 California Anttiology, 1882 Bench and Bar in California, 1889 Official Roll of San Francisco, 1894 The San Francisco Historical Abstract, 1897 Eloquence of the Far West, 1 899- 1 900: Masterpieces of E. D. Baker. Pocket Edition '' You are making good books. c4 novel is no-where in comparison ivith the reminiscences in "Bench and Bar. " —"Dr. "Bonte, Secretary Board of Regents, University of California. 509 Kearny St., San Francisco, Cal. HISTORY OF THE BENCH AND BAR OF CALIFORNIA 'Printing by Commercial Printing House LOS ANOELE8 Linotype Composition by Miller & Wagner LCS ANOELES Engravings b\) Los Angeles Engraving Co. LOS ANGELES 'Binding by Glass & Long ^p HALL MCALLISTER SKK I'Al^K 117 HISTORY OF THE Bench and Bar OF CALIFORNIA BEING biographies of many ^markable cMerit a Store of Humorous and bathetic '^collections^ (Accounts of Important Legislation and Extraordinary Cases^ COMPREHENDING THE JUDICIAL HISTORY OF THE STATE EDITED BY OSCAR T. SHUCK, Editor of "Col. E. D. Baker's Masterpieces", and other Works. U08 BnaclcB, Cal. THE COMMERCIAL PRINTING HOUSE 1901 c, I Entered according to Act of Congress, in the year iqco, by M. M. Miller and Ulrich Knoch. in the office of the Librarian of Congress, at Washington, D. C. Copyright transferred, iqoi, to Ulrich Knoch THIS HISTORY IS REGARDFULLY INSCIMBKD 'JO Ibon. 5obn ©. /iRcCullougb, %%.W>., Now A DiSTiNGUisirKD Puhlic Max of Vekmont, REMEMBEHED AS A Light of the P^AHiiT Bar of California, AND FOR his HHILLIANT ADMINISTRATION OF THE OFFICE OF Attornev-Genekal, 18( ).">-! n(")7. ^- PREFACE To the Hon. M. M. Miller, of the San Francisco Bar, belongs the credit of originating the idea of presenting such a "History of the Bench and Bar of Cali- fornia" for the first half century as the present volume ofifers. It was early in the year 1899, that this conception became developed in the mind of Mr. Miller, who thereupon enlisted the co-operation of the enterprising publishing house of Los Angeles, whose name appears on the title page of this work. Much material was gathered and the plan was pursued by its originator, until the success of the undertaking was assured, through the favorable reception given to the projected work by the profession. Then Mr. Miller, under alluring inducements held out to him to settle in Honolulu and take part in the transformation of the Hawaiian Islands into a portion of the American Union, was led in the spring of 1900, to resume his legal practice, and thereupon disposed of his interest under an advan- tageous sale to the publisher. The undersigned author of the only like work then extant, that entitled, "Bench and Bar in California," issued in 1889, was then engaged to edit the present work. In the twelve months which have since elapsed, the Editor has given, substantially, all of his time and endeavor to make the book answer to its aspiring title. The historical articles, which make up a large part of the volume, have familiar signatures, — those of experienced and devoted men who command the admiration of the bar, and of the judiciary as well, for the learning and dignity which they have brought to their calling. Their valued contributions belong not only to the story of the bar, but to that of the State. The Publisher and Editor join in acknowledging their great obligation to these fruitful minds, and now give into the hands of a great profession a most engaging and instructive History. OSCAR r. SHUCK. San Francisco, March 25th, 1901. TABLE OF CONTENTS Introductory : Historical View of the Judiciary System of Cali- fornia. Henry H. Reid xv A Review of Military-Civil Government, 1846-50. Samuel //'. Holladay 3 The Birth of the Commonwealth. Prof. Rockzcell D. Hunt 35 Adoption of the Common Law. The Editor 47 Treaty of Guadalupe Hidalgo and Private Land Claims. John Currcy 57 The Death Penalty for Larceny. The Editor 75 Recovery of the Pious Fund. John T. Doyle 81 The Bonanza Suits of 1877. John H. Burke 95 Irrigation Laws and Decisions of California. John D. Works loi The Tragic History of the Sharon Cases. 77?^ Editor 173 The California Code of Laws. The Editor 191 The Strange Story of an Old Bank Deposit. The Editor 197 The Broderick Will Case. The Editor 209 The Horace Hawes Will Case. The Editor 215 Legal Education in the State University. Gnstav Gutsch 221 The Field of Honor: Historic Duels in California. Tlie Editor .... 227 Lynch Law in California. John G. Jury 267 The History op the Mining Laws of California. JoJm E. Davis .... 279 The Celebrated Trust Will of James G. Fair. The Editor . 335 The State Supreme Court From its Organization 349 Attorney-Generals of California 357 Our First Water Rights Decision. The Editor 361 The Remarkable Contempt Case of Philosopher Pickett. The Editor 367 Reminiscences of California Judges and Lawyers. M. M. Estec: E. IV. McKinstry; William T. Wallace; The Editor ^yy Men of the First Era. The Editor 417 Veterans Surviving in 1900. The Editor 483 Necrology of Recent Years. The Editor 537 Masters Who Followed the Pioneers. The Editor 559 The Adventurous Career of L. A. Norton. The Editor 5()5 Some of the Strong Men of Today. The Editor 617 Federal and State Judiciary — Past and Present, llie Editor 653 Seniors of the Collective Bar. The pAiitor 771 The Junior Rank. The Editor 993 Citizenship of Chinamen. Marshall B. Woodii'orth 1099 The Early Bench and 1)Ar of San Jose. JoIdi E. Richards 1 107 California Law Books — Complete List 1131 Stephen M. White — In Memoriam 1 137 INTRODUCTORY: HISTORICAL VIEW OF THE JUDICIARY SYSTEM OF CALIFORNIA HENRY H. %EID Henry H. Reid L5'a-j3&dSi>&<2fow3&&& HISTORY of the BENCH and BAR of CALIFORNIA e*3eraaso«jetactp«i«if^>e^c5|n INTRODUCTORY: HISTORICAL VIEW of the JUDICIARY SYSTEM of CALIFORNIA What could I)e more interesting and instructive than to trace the origin and development of the judicial system of a great modern State? And among the "American Commonwealths" — of whose institutions that eminent scholar and acute observer, Professor James Bryce, has written with a knowledge and ability not elsewhere equalled — what state has a history more attractive and of more value and importance than that of California? The philosophic and historic truth, that in order to understand the present we must study the past, finds no stronger confirmation than in the realm of jurisprudence. But we must be circumspect in our search for the beginnings of things, lest we find ourselves following the example of Dicdrich Knicker- bocker, in his "History of New York from the Beginning of the World to the End of the Dutch Dynasty," in which the author, having been "bred to the law," and giving due regard to precedents, historical and otherwise, devotes the five chapters constituting his first book to a history of the world and its cosmogony, with references to the famous navigators, Noah. Columl)us, and Captain Lemuel Gulliver, the origin of the aborigines, and the peopling of America. We shall therefore refrain from exploring the vast field of Spanish and Mexican law — based upon the laws of the Romans, as modified 1)\" the Canon law — and from describing, except with the utmost brevity, its practical application and administration in California prior to the American occupation in July, 1846. Shortly after Mexico had won her independence from Spain, the new gov- ernment formed the two Californias (territories) out of the old Mexican states of Sonora and Sinaloa. The Californias were then made to comprise the sixth judicial circuit of the Mexican Kcpublic. and Alta, oi- I'ppi-'i' Cali- fornia (our California), was made one of the districts of that circuit. In 1828, a court for the circuit was installed at Rosario. with Jose Joa<|nin .\\ ilcs as judge, but no district court had been organized for Alta California. There was an i^cclesiastical Court, presided o\er by Tadic |ose J^ancluv, then presi- dent of the missions and riairio furiiiwo, oi" represcntatixc ol the I bishop of Sonora. xvi. History of the Bench and Bar of California. Under the Mexican law of December 29, 1836, the alcaldes exercised juris- diction (in civil law nomenclature) over cases of conciliation, oral litigation, and preliminary proceedings, of both civil and criminal nature. There were several attempts to establish a Superior Court, and in June, 1845, the matter of the reorganization and regulation of a superior tribunal of justice was taken up. This was to consist of two judges {ministers) and an attorney general (fiscal), and to be divided into two chambers. As to inferior jurisdictions, there was to be in each capital of a partido a court of first instance, presided over provisionally by the First Alcalde, where there was an Ayuntamiento (or town council), and elsewhere bv a justice of the peace of first nomination. There was but brief oi^jjortunity to test the wisdom of this judicial system by actual practice; for war with the United States quickly followed, resulting in American occupation and annexation. The transition from the old regime to the new was sudden as well as permanent, and the efificient administration of affairs by the military officials, until the establishment of civil government and formal tribunals for the administration of justice, put to shame the history of high officials in later periods of our national life. The first of these military governors was Colonel Richard B. Mason, whose administration began on May 31, 1847, ^^^ terminated on April 13, 1849. He appears to have been a man of excellent judgment, and, as far as possible, he acted upon the American principle that the military should be subordinate to the civil power. He ordered that cases should be tried by jury — consisting, in ci\-il cases, of six, and in criminal cases, of twelve jurors. As illustrative of his determination that all classes should be equal before the law, Hittell. in his History of California, gives the following account : "In November, 1847, Father Real, of Santa Clara, was suerl before the Alcalde of San Jose, for a breach of contract. In defense, he pleaded that, as an ecclesiastic, he w^as not amenable to the profane judgment of a civil court. The question being referred to the Governor, the latter (Mason) replied that he did not know what peculiar privileges his Reverence enjoyed, but it was very evident that if he departed from his religious calling as a Catholic priest, and entered into a secular bargain with a citizen, he placed himself upon the same footing with the citizen, and should be required, like everybody else, to comply with his agreement. By this decision, unimportant as it might have appeared. Governor Mason wiped out from California jurisprudence the abuse of clerical privilege, which had grown up as a part of the Civil Law." Colonel Mason was succeeded as Governor by General Bennet Riley. Judge E. W. McKinstry has observed of this first-class officer, in an address before the Society of California Pioneers, on September 9. 1871. that he "was not too scientific a soldier to fight, and not so much of a constitution-monger .as to interfere with the natural course of events. He employed without osten- History of the Bench and Bar of California. xvii. tation, and surrendered without delay, such civil powers as were thrust upon him by an extraordinary combination of circumstances.'' On June 3, 1849, Governor Riley issued a proclamation for the election of a Superior Court of four judges and a fiscal, a judge of first instance for each district, alcaldes, and justices of the peace. The election took place August I, i confirmed the grant for ninety-nine years. On March 27th, 1847, General Kearny ordered Colonel R. B. Mason I History of the Bench and Bar of California. 27 to proceed to the Southern Military District of this territory, at Los Angeles, to ins])ect the troops in that (juarter. "Yon are hereby clothed with full authority to give such orders and instructions, in that country, upon all matters whatever, both civil and military, as in your jndgiuent you mav think con- ducive to the public interest." A note by Kearny, dated next day after the above order, was addressed to Colonel Fremont, at Los Angeles. The latter about those days, was him- self claiming to be Governor of California; but that claim was not sustained by the naval or military officers present, nor by the administration. DIVORCKS. A married couple applied to an Alcalde for a divorce. The alcalde con- sulted (Tcneral Kearny. He advised the alcalde as follows: "That the hus- band and wife each should choose an arbitrator ; and the two thus chosen must choose a third, then let the three arbitrators, in your presence, hear what both ])arties have to say. and flecide whether the parties [naming them] shall be separated, for three, six, or twelve months, if separated at all." CouU' the wisdom of Solomon excel that judgment? On May 28th, 1847, General Kearny appointed George Hyde alcalde of the District of San Francisco vice Edwin Bryant, resigned. Mr. Hyde, soon after this appointment, was elected alcalde by vote of the people of the town. The governor ordered municipal elections at various times and places foi prefects, sub-prefects, etc. ; he also set aside other elections for irregularity. On July 14th, 1847, Govern.or Mason appointed "John Foster as alcalde for the District of San Juan, em1)racing the ranches of San Juan, San Luis and Tala in L^pper California." In Robidoux v. Lease, in June, 1847, Governor Mason refused a change of x'enue a second time, the case being in the alcalde's court; giving good lawyer- like reasons for refusal. GOVERNOR MASON PROCLAIMS PIvACK. On August 7th, 1848, "Colonel R. B. Mason, Colonel First Dragoons, Governor of California." makes public proclamation of the ratification of the treaty of ])eace, and friendshi]) between the United States :nid Mexico, bv which Tpper California is ceded to the United States. He says, that until we shall have a regularly organized territorial government, the present c;\il officers will continue in the exercise of their functions as heretofore, and when \'acancics shall occur, they will be filled by regular elections held bv the peonle. Mr. Marcy .says to Colonel Sterling Price, in letter of June iith. 1847: "The temporary civil government in New Mexico results from the conquest of the country. It does not derive its existence directlv from the laws of congress, or the constitution of the United vStatcs, and the President can not. 28 History of the Bench and Bar of California. ill any other than that of Commander-in-Chief, exercise any control over it. It was first estaljlished in New Mexico, by the officer at the head of the miHtary force, sent to conquer the country under general instructions contained in the communication from this department of the 3rd of June, 1846. Beyond such general instructions, the President has declined to interfere with the management of the civil affairs of this territory." This letter is addressed to the "ofificer commanding the United States forces, at Santa Fe, New Mexico.'" Here, again, is an attempt to define the status of the military authority, relating to civil laws, unrepealed, which were admittedly in operation in all local municipal aft'airs, at least. New Mexico and California were both in rhe same legal condition. The validity of the local municipal laws, is prac- tically acknowledged retrospectivel}-, in recognition of the alcalde grants of town lots, by the various alcaldes in San Francisco, and also in the other pueljlos from 1846 to 1849, '^"<^1 '^'so by the recog-nition of a title to a parcel of 500 acres of the pueblo lands of San Jose, granted by an alcalde (the Chiboya claim) ; and the like recognition of title to a half-league of puelilo land, of Los Angeles, granted by the alcalde of that pueblo (the Rocha claim — 9 Wallace, 647). The law did not change, though land values, almost nominal at the times of the grants, rose enormously before the date of final decisions thereon by the Supreme Court of the United States. ALCALDES AND LARLY LAND GRANTS. In all the principal towns in California, including San Diego, Los Angeles, Santa Bar])ara, San Jose, San Francisco, Sonoma and some others, perhaps, the alcaldes were elected by the inhabitants of the place; and in case of a vacancy, for any cause, in that ofiice, it was filled by the Governor. The al- caldes, respectively, of those pueblos were the well recognized heads of the mu- nicipality. By the laws and customs of Mexico, those towns or puel)los. as they were called, were entitled to imeblo lands, usually to the extent of four leagues to each pueblo, for the use and benefit of the inhabitants. They were usually distributed to the inhabitants, by grants of lots, as needed. Grants were made by the alcaldes. Such was the practice in San Francisco, where the practice began as early as 1836 and continued down to the passage of the first city charter enacted by the legislature of the State, .April 15th, T850. For a while before the charter of 1850 went into effect, town lots were sold at public auction by order of the town council; the deeds were made to the purchasers by the alcalde, in the name of the town. It is believed that such was the practice of distributing town lots by alcalde grants in all the other pueblos of California. The alcaldes, under the new regime, who succeeded the first two already named, i. c., Bartlett and Bryant, were George Hyde, Thaddeus M. Leaven- History of the Bench and Bar of California. 29 worth, and John \V. Geary. They were all elected by the inhabitants of the town. They all granted town lots. Those grants were entered" of record by them. The books containing the grants compose the record title of such lots, derived from the town and are a part of the city land titles in the official custody of the county recorder. For a full and particular account of all the grants of town (or pueljlo) lots made by the alcaldes, ayuntamientos or other municipal authorities of the pueblo, town or city of San Francisco from the year 1836 to 1851, the reader i.s referred to "AMieeler's Land Titles." It is an abstract from the official records, made under the direction of the Towai Council. It shows the date of grant or sale; description of every lot granted; the name and title of the officer or authority bv which the grant was made. CAl,L FOR A COXSTITUTIONAL CONVENTION. General Rile3\ the Governor, on June 3, 1849, issued his proclamation for holding a special election August ist. next, "for the election of delegates to a general convention, and for filling the offices of judges of the Superior Court, prefects and sub-prefects, and all vacancies in the office of first alcalde (or judge of first instance), alcaldes, justices of the peace and town councils." The Governor puts the reasons for his call on the ground that "congress has failed to organize a new territorial government." . . . "so that it becomes our imperative duty to take some active means to provide for the wants of the country." . . . "by putting in full vigor the administration of the laws as they now exist, and completing the organization of the civil government by the election and appointment of all officers recognized by law," "and a convention to meet and frame a State constitution or a terri- torial organization." to be ratified by the people and by congress. He repels "the im])ression that the government of the country is still military. Such is not the fact. The military government ended with the war, and what re- mains, is the civil government, recognized in the existing laws of California." "Although the command of the troops in this department and the admin- istration of civil affairs in California are, by the existing laws of the country and the instructions of the President of the United States temporarily lodged in the hands of the same individual, they are separate and distinct." "No military officer, other than the commanding general of the depart- ment, exercises any civil authority by virtue of his military commission ; and the powers of the commanding general as ex-officio governor, are only such as are defined and recognized in the existing laws." "The instructions of the Secretary of War, make it the duty of all military officers to recognize the existing civil government, and to aid its officers with the military force under their control." "The existing laws of the country must continue in force until replaced l)y others made and enacted by comi)e- tent power." 30 History of the Bench and Bar of California. On September 19, 1849, Governor Riley tells E. O. Crosby, Thomas O. Larkin. and others, a committee of the constitutional convention, that the "accounts and affairs of the con\ention, should be certified by the president of the convention as just and true, and authori::cd by the convention; then on receiving my written approval, they will be paid by the civil treasurer, or his agents." The "civil treasurer" meant the keeper of custom-house receipts, etc. All monies so collected went not into the national treasury, but went to pay local expenses of California. Had the author of the opinion in \Voodworth v. Fulton (i Cal. Rep., de- cided December, 1850) read this opinion of General Riley, and those of the other generals, and the opinions of Secretary Marcy and Secretary Buchanan, above Cjuoted, that opinion would never have been pronounced. Then the city would not have suffered the stunning effects of that decision, till it was finally corrected l)v the proper one in Cohas v. Raisin, some two years later. (3 Cal. 443.) The foregoing copies and extracts of ofticial papers, are proft'ered, in evi- dence of the ardent jnu'ijose of the administration and its officers, to make our government both agreeable and profitable to our newly-adopted fellow- citizens. The same spirit of peace and good will is manifest in every act and order of the officers who were expected to carry such policy into execution. The calm and unpretentious tone in the correspondence of these officers, with their sub- ordinates, is worthy of imitation. Their kind and courteous intercourse with the officers of the naval squadron, brought the two arms of the service in per- fect accord in all things they undertook in the concjuest and government of this territory. The exceptional breach of such kindly intercourse among officers of the army and navy arose between Kearny and Fremont in 1847, fi'oni the question, which was governor, /. e., was it Kearny under the President's order of 1846, or was it Fremont, under Stockton's appointment in July, 1847. It is foreign to present purposes to discuss the merits of that bitter quarrel, which aroused a contest of the ])arties and their friends, including cabinet officers, senators and others, of a very serious nature. After California came into the possession of the United States, the alcaldes. Judges of First Instance, prefects, etc., in some of the principal settlements, continued to exercise their wonted Junctions as nearly as they could, in con- formity to the Mexican civil laws and customs; which, of course, were still unrepealed, and therefore unaffected by the change of flags. But more often the places of the native officers were filled by new-comers from "the States," while in the mines, where was the mass of population after mining began, the miners appointed their own alcaldes from their own numbers, and they, with the aid of a jury, when demanded, tried mining suits, criminal cas^s and the like, in general conformity to court procedure; and so administered justice with celerity, in a spirit of real fairness, and to the satisfaction of the com- History of the Bench and Bar of California. 31 niunity. There were exceptions to the calm jury-trial practice, in some of the mining camps, where capital punishment was visited on certain criminals ; and scarcely less harsh and severe penalties were inflicted on others, without the form of a deliberate trial. It was to avert such consequences that alcaldes at times meted out severe correction. The foregoing outline of California's history may prove useful to readers who desire to understand some of the chief events as they occurred in connec- tion with the Mexican War, as it related to the acquisition of the State, and to .show their relation to each other, and to the respective movements in Mexico and in California, as parts of a broad and general plan of action. It indicates the vast powers confided, tacitly, not explicitly, to the military officers here, and shows the remarkable wisdom, patriotism and fidelity with which those duties were performed. It suggests that such duties, committed to talented, well-trained men, educated in our military and naval schools, are regarded by them as a sacred trust, never to be neglected or violated. We have pointed to a reservoir of precedents, which may be useful to all who have a part in public rule, who may be dependent on their knowledge and mental resources to guide them in their fields of action. The thoughtful statesman cannot study, without admiration and wonder, the even temper, the sustained moderation, with which our army officers for nearly four years, in the absence of legislation and almost beyond reach of the paramount authorities, administered all military and ci\'il affairs in the vast and conquered country. SAMUEL W. IIOLLADAY. San Francisco, Cal., Decemljer i, 1900. JAMES BUCHANAN'S OPINION ON SOME CONSTITUTIONAL QUESTIONS. In the autumn of 1848, the Postmaster-Cicncral appointed William \'an \drhies "an agent under the act to establish certain postal routes"' in California, approved August 14. 1848. As Mr. Van Vorhies was about to start fo.- California on that mission, he received a letter of instructions from James Buchanan, then Secretary of State under President Polk ; the letter bearing date October 7, 1848, saying to Mr. Van Vorhies, among other things : "The President has instructed me to make known, through your agency, to the citizens of the United States inhabiting that Territory, his views respecting tlieir present condition and future prospects." "The President congratulates the citizens of California on the annexation (^f tlieir fine province to the United States." . . . "On the 30th of May, 1848. the day on which the ratifications of our late treaty with Mexico were exchanged, California finally became an integral portion of this great and glorious republic; and the act of Congress to which I have already referred, in express terms recognizes it to be within the territory of the United States." 32 History of the Bench and Bar of California. After some further congratulations upon their annexation, the letter saj'S : "Under such a constitution and such laws, the prospects of California are truly encour- aging." "The President deeply regrets that Congress did not at their late session, establish a territorial government for California." . . . that he "is convinced that Congress will at an early period of the next session provide for them a territorial government, suited to their wants." ... "In the meantime the condition of the people of California is anomalous, and will require, on their part, the exercise of great prudence and discretion. "By the conclusion of the treaty of peace, the military government which was estab- lished over them under the laws of war, as recognized by the practice of all civilized nations, has ceased to derive its authority from this source of power. "But is there, for this reason, no government in California? Are life, liberty and property under the protection of no existing authority? This would be a singular phe- nomenon in the face of the world, and especially among American citizens, distinguished as they are above all other people for their law-abiding character. Fortunately they are not reduced to this sad condition. The termination of the war left an existing government, a government dc facto, in full operation; and this will continue with the presumed con- sent of the people, until Congress shall provide for them a territorial government. The great law of necessity justifies this conclusion. The consent of the people is irresistibly inferred from the fact that no civilized community could possibly desire to abrogate an existing government, when the alternative presented would be to place themselves in a state of anarchy, be3^ond the protection of all laws, and reduce them to the unhappy necessity of submitting to the dominion of the strongest. This government dc facto will, of course, exercise no power inconsistent with the provisions of the Constitution of the United States, which is the supreme law of the land. For this reason no import duties can be levied in California on articles, the growth, produce, or manufacture of the United States, as no such duties can be imposed in any other part of our Union on the prodticts of California. Nor can new duties be charged in California, upon such foreign productions as have already paid duties in any of our ports of entry, for the obvious reason that California is within the territory of the United States." After dilating on the peaceful and prosperous conditions of California, the postoflfice laws extended to California ; the contemplated "monthly steamers on the line from Panama to Astoria, to stop and deliver and take mails at San Diego, San Francisco, and Monterey," that "appropriations have been made to maintain troops to nrotect the inhabitants against all attacks from civilized or savage foes," etc., etc., the letter adds : "But, above all, the Constitution of the United States, the safeguard of all our civil rights, was extended over California on the 30th of May, 1848, the day on which our late treaty with Mexico was finally consummated. "From that day its inhabitants became entitled to all the blessings and benefits resulting from the best form of civil government ever established amongst men. . . . "A considerable portion of the population of California were Mexican citizens before the late treaty of peace. These, our new citizens, ought to be, and, from the justice and generosity of the American character, the President is confident that they will be, treated with respect and kindness, and thus be made to feel that by changing their allegiance they have become more prosperous and happy." In the opening lines of the foregoing letter, Mr. Buchanan says that the President has instructed the writing of it (in eflfect) to the people of California. Doubtless it reflects the united counsels of President Polk and his entire cabinet, composed as it was, of wise and great men. In anticipation of questions that may arise applicable to our lately extended dominions, it is hoped that some of the principles of government, adopted by President Polk and his cabinet, may be found applicable to these later strains upon the Constitu- tion. S.IML'EL Jl\ HOLLADAY. THE BIRTH OF THE COMMONWEALTH "ROCKWELL 1). HUNT, Vh. T>. 'Professor of History and Political Science in the University of the Pacific & & & & 'A dfe A jfc ab & HISTORY of the BENCH and BAR of CALIFORNIA 6^(^ T/ze BIRTH of the COMMONWEALTH Half of a century has passed since there met in old Monterey a distin- guished body of men, who gave California her first fundamental law as a commonwealth of the United States of America. Those pioneers of the Pacific, together with their generation, have with hardly an exception gone to their long home. The days of '49 — thrilling, epoch-making, unique — can never be reproduced. The seizure of California was a most important act in the drama of our war with Mexico. Tidings of peace were received by General Riley, August 6, 1848. Under the military rule of Governor Mason many of the American settlers had become exceedingly restive in the absence of a regular civil gov- ernment. Now that the Treaty of Guadelupe Hidalgo left California an integral part of our national domain the settlers became even more clamorous for civil organization based upon American principles. In the meantime the discovery of gold almost infinitely increased the need for organized gov- ernment and the more perfect administration of justice. In those days of gold there was among lovers of law and order — be it said to their honor — much genuine solicitude for California's future. Repeated failures of Congress to provide suitable organization, because of the burning question of slavery extension, greatly increased the gravity of the situation and multiplied the embarrassing difficulties of the de facto Gov- ernors. California was filling up with a heterogeneous tide of adventurers and fortune-hunters from all lands; the gaming-table was rapidly breeding drunkenness and crime; law was almost wholly wanting, justice was being defeated and villainy was fast becoming rampant. California, now "to be morally and socially tried as no other American community ever has been tried," became the focus of the world's attention. It is little cause for sur- prise, therefore, that patience was at length exhausted, and that the people, true to their Anglo-Saxon instinct and training, without waiting longer for Congress or Governor, initiated a widespread movement looking toward civil government. 36 History of the Bench and Bar of California. The first provisional government meeting was held in Pueblo de San Jose, December ii, 1848. This enthusiastic gathering unanimously recommended that a ''general convention for the purpose of nominating a suitable candidate for Governor, and for such other business as may be deemed expedient be held at the Pueblo de San Jose on the second Monday in January next." Three delegates, Messrs. Dimmick, Cory, and Hoppe were chosen. At San Francisco a similarly enthusiastic meeting was held, and similar recommend- ations were adopted, the date of the proposed convention, hoAvever, being fixed at the first Monday in March, 1849. Several other dates were subse- quently recommended by various district meetings; but finally the first Mon- day in August, a date remote enough to allow the southern district to be rep- resented in those days of slow communication and travel, was conjointly agreed upon. On February 12, the people of San Francisco, in mass meeting assem- bled, established a temporary government for that district under circum- stances that would seem to render such action both logical and justifiable. Thus arose the ''Legislative Assembly of San Francisco," comprising among its fifteen members some whose talents were of the highest in California. The just motives of these select men cannot be questioned, neither can their unceasing loyalty to the United States be impeached. In default of neces- sary officials there were also chosen three magistrates, a treasurer and a sheriff. The population of San Francisco which in March. 1848, numbered 812 souls, had increased by February, 1849, ^o some 2,000, and by July to upwards of 5,000. In the midst of these preparatory movements for civil organization, Gen- eral Bennett Riley arrived, April 12, on board the Iowa, and the following day relieved Colonel Mason as acting Governor of California. Cognizant of the movements of the people for organization, he awaited, with such patience as circumstances would permit, news of Congressional action. Immediately on learning of the third failure to provide for the civil govern- ment of California he issued a carefully drawn proclamation, dated June 3, "defining what was understood to be the legal position of affairs here, and pointing out the course it was deemed advisable to pursue in order to procure a new political organization better adapted to the character and present con- dition of the country." The proclamation contained the following important provisions : "In order to complete this organization with the least possible delay, the undersigned in virtue of the power in him vested, does hereby appoint the ist of August next as the day for holding a special election for delegates to a general convention, and for filling the ofiices of Judges of the Superior Court, prefects and sub-prefects, and all vacancies in the offices of first alcalde (or Judge of first instance), alcaldes, justices of the peace and town councils. The general convention for forming a State constitution or plan for territorial government will consist of thirty-seven delegates, who will meet in Monterey on the ist day of September next." History of the Bench and Bar of California. 37 Meanwhile General Riley had been made aware of the existence and force of the San Francisco legislative assembly, w'hich had been assuming new and more extended powers. The assembly did not recognize any civil power as residing in General Riley, a military officer. Accordingly Riley's proclama- tion, appointing day and place for a constitutional convention, provoked no slight opposition; and the San Francisco legislative assembly, which had become the head and front of the settlers' movement, again took occasion to assert w-hat it considered its undoubted right; "It is the duty of the govern- ment of the United States to give us laws ; and when that duty is not per- formed, one of the clearest rights we have left, is to govern ourselves." The assembly even recommended a general convention to be held at San Jose on the third Monday in August, 'Svith enlarged discretion to deliberate upon the best measures to be taken ; and to form, if they upon mature consideration should deem it advisable, a State constitution to be submitted to the people." Almost simultaneously wath the publication of this address Governor Riley issued a proclamation to the people of San Francisco, pronouncing the "body of men styling themselves the 'legislative assembly of the district of San Francisco," an illegal and unauthorized body, wdiich had usurped powers vested solely in the Congress of the United States, and warning all persons "not to countenance said illegal and unauthorized body, either by paying taxes or by supporting or abetting their officers." It looked for the moment as if the legislative assembly had assumed an attitude of reckless defiance, but this was true only in appearance. The people on the one hand and the de facto Governor on the other had now arranged for a general constitutional convention, the date and place conflicting. The opposing theories which for convenience may be called the Settlers' Theory and the Administration Theory, on the question of the legal status of California from the ratification of the treaty with Mexico to the adoption of the State constitution had now been clearly defined and respect- ively defended in the territory itself. Which side should give way? Happily in this case the people w-ere not sticklers for their alleged rights. What they desired was organized government ; the end was paramount, the means of securing it secondary. Hence indications of satisfaction wMth and acquiescence in Riley's plans began almost immediately to manifest them- selves. San Jose first expressed satisfaction, and other districts followed. The San Francisco legislative assembly, viewing with hopefulness the chang- ing situation, finally recommended the propriety "of acceding to the time and place mentioned by General Riley, in his proclamation and acceded to by the people of some other districts." This was not deemed a concession of prin- ciple, but a matter of expediency, for the assembly still refused to recognize any rightful authority to appoint times and places as residing in General Riley. The quiet downfall of the assembly, which had remained loyal to the w^elfare of California to the last, was recorded the next week, July 19. The controversy was at an end. The election of delegates to the conven- 38 History of the Bench and Bar of California. tion elicited unanticipated interest in every district, the result in large measure of the special efforts of Generals Riley and Smith and Thomas Butler King. The native Californians of the southland showed unexpected cordiality, and even the miners turned aside to seek out suitable candidates. "It seemed, however." as Dr. S. H. Willey has said, "like a very odd idea for such a mass of strangers as were then in California, speaking in diverse languages, know- ing little of each other's views, a great part of them men without families and in the country only for a temporary purpose, to go to work within a few months of the arrival of most of them, without any authority or encourage- ment from Congress, to set up a new State." Scheming of parties and politi- cal machinations were wanting, the earnest endea^•or being to select competent men. By Septeniber i. many of the delegates were in Monterey, but no quorum appeared at the Saturday meeting. The convention organized on Monday, September 3, 1849. opening with prayer to Almighty God "for his blessing on the body in their work, and on the country." The meeting p\Rce was the upper story of Colton Hall, one of the most important buildings extant from the standpoint of our State history. The choice of Dr. Robert Semple, of Kentucky, for president seems to have been eminently wise. The key-note of the convention was struck when in his brief address he said : "We are now% fellow-citizens, occupying a position to which all eyes are turned. . . . It is to be hoped that every feeling of harmony will be cherished to the utmost in this conven- tion. By this course, fellow-citizens, I am satisfied that we can prove to the world that California has not been settled entirely by unintelligent and unlet- tered men. . . . Let us. then, go forw^ard and upward, and let our motto be, 'Justice, Industry and Economy.' " William G. Marcy was elected secre- tary, and J. Ross Browne reporter. This convention, meeting under circumstances quite unique, presents a personnel of unusual interest. There were majiy Americans who had already rendered conspicuous service in laying the foundation of the commonwealth. The Hispano-Californians numbered seven, and there was one native each of Ireland, Scotland, Spain, France and Switzerland. Here was a body of men, not of national reputation nor of extraordinary learning, but for the most part disinterested, competent and zealous for the faithful discharge of their high commission. California's first constitution was not the sudden creation of unintellectual gold-hunters ; for only six of the delegates had resided in California less than six months, while twenty-two, exclusive of native Californians, had resided here for three years or longer. \\'ith good reason Professor Royce declares: "Had these men of the interregnum not preceded the gold-seekers California would have had no State constitution in 1849." The roll of members included Captain John A. Sutter, universallv known for his hospitality and amiable qualities, whose fort at Sacramento had been for a decade the chief rendezvous of central California for the American History of the Bench and Bar of California. 39 immigrants ; Captain H. W. Halleck, then Governor Riley's efficient Secretary of State, and since distinguished in law, literature, and war ; Thomas O. Lar- kin, widely known as the first and last American consul to California ; Edward Gilbert, pioneer journalist and an early representative in Congress ; William M. Gwin, undoubtedly the most distinguished politician of the convention, who had four months before come to California with the express purpose of securing his election to the United States Senate; and John McDougal, of Ohio, who became second Governor of the new State on the resignation of Burnett. The seven native Californians, a fair representation, comprised some of the best-known names of the old regime; General M. G. Vallejo, for many years known as the "most distinguished of living Hispano-Califor- nians" ; P. N. de la Guerra, the most accomplished and best-educated of the group; Jose Carrillo, intelligent, forceful, of pure Castilian blood, but some- what prejudiced against the Americans ; Antonio Pico, of distinguished family, shrewd if not always suspicious ; — these, with the more obscure names of Manuel Dominguez, Jacinto Rodriguez, and J. M. Covarrubias, completed the group, — unless we add M. de Pedrorena, a native of Spain, — only two members of which spoke English with any fluency or readily understood it. All were treated with a high degree of respect, and to them were extended special courtesies. We are indebted to J. Ross Browne, the reporter, for the "Debates in the Convention,'' with appendices, a volume invaluable to the student of our his- tory. It was provided that the convention should be opened each day with prayer, the chaplains appointed being Rev. Padre Antonio Ramirez and Rev. S. H. Willey, both of Monterey. Dr. Willey has given us one of the best accounts of the convention, and has made other important contributions to our State history. The obviously difficult task of constitution-making was undertaken by a body of perhaps the youngest men that ever met for a similar purpose, the average age of delegates being thirty-six years. Carrillo, the oldest, was fifty-three ; Jones and Hollingsworth were each twenty-five. Browne assures us that "the body, as a whole, commanded respect as being dignified and intellectual" ; and Bayard Taylor affirms that, "taken as a body, the dele- gates did honor to California and would not suffer by comparison with any first State convention ever held in our Republic. The appearance of the whole body was exceedingly dignified and intellectual, and parliamentary decorum was strictly observed." A summary would sliow f(^urteen lawyers, twelve farmers, eight merchants and traders, and one (B. F. Moore) gentle- man of "elegant leisure." Fully awake to the importance of their labors and of their local position in national politics, the delegates as a body were, as Colton declared, raised "above all national prejudice and local interests," pouring their spirit in blending ])ower over their measures. A strong vote for State organization fjuickly disposed of the important preliminary (juestion whether the assembi}- should form a State or Territorial 40 History of the Bench and Bar of California. government. California has never been a regularly organized Territory of the United States. The debates that occupied those builders of a commonwealth cannot be reviewed in detail in this paper; yet any sketch would fail of completeness that did not at least mention a few of the leading discussions that so power- full v tended to shape the very existence and destiny of our loved common- wealth. INIyron Norton, chairman of the committee on the constitution, pre-' sented a declaration of rights borrowed almost entirely from the constitutions of New York and Iowa ; and into this declaration Shannon of Sacramento moved to insert as an additional section : "Neither slavery nor involuntary servitude unless for punishment of crime, shall ever be tolerated in this State." Surprising as it may seem, this most vital section was unanimously adopted. The preponderance of sentiment in the convention, and much more in the territory at large, was favorable to the formation of a free State. Fifteen members had come from slave-holding States, but even radical Southerners were compelled to admit that Californian conditions were entirely unfavorable to the introduction of slave labor. To be sure, the passage of this section could not give a quietus to the absorbing question of slavery extension, in all its bearings throughout the vast newly acquired territory known as Cali- fornia ; but the supreme step had been taken, the word had been uttered. So profound was the national influence of this vital decision that it is hardly an exaggeration to affirm with Dr. Willey that it was the "pivot-point with the slavery question in the United States." Our great commonwealth, entering the Union as the sixteenth free State, forever destroyed the equilibrium between North and South. Deep interest was shown in the question of separate property for married women. Some of the arguments, amusing in themselves, throw a light on the social status of the country at that time. The proposed section was at length adopted, granting the w^ife power to hold separate property. This is believed to be the first time that such power was granted to women by a State constitution. The debates on education showed a warm interest in the subject, and great unanimity in favor of establishing a well-regulated system of common schools. Liberal provision was therefore made, and the founding of a State university was contemplated by setting apart the income of lands. The long debate on the question of California's boundary demands more than passing notice. This was by far the most animated discussion of the entire convention, a discussion, moreover, of the most profound significance as the most strictly sectional contest of the session. At the very last the constitution came dangerously near being totally wrecked. The California ceded to the United States was vastly greater in its extent than our commonwealth, embracing as it did, the great desert east of the Sierra Nevada and the fertile country occupied by the Mormons ; in other words, including all the present territory of California. Nevada. Utah, and History of the Bench and Bar of California. 41 Arizona, and extending even into Wyoming, Colorado, and New Mexico, the Rocky mountains forming the eastern boundary. The committee on boundary reported that in its opinion all Mexican California, estimated at 448,691 square miles, was entirely too vast for one State, and recommended as an eastern boundary the one hundred and sixteenth parallel ; that is, an arbitrary line intersecting eastern Nevada. Being referred to the com- mittee of the whole, debate opened early September 22, and continued until late at night. Sundry amendments proposing various boundary lines were con- sidered, the disagreement widened, differences were apparently irreconcilable. There was no disguising the fact that at bottom it was to be the final struggle of the pro-slavery forces. Gwin proposed the eastern line lying between New Mexico and the Mexican cession, and took a leading part in the contest for the larger boundaries. Subsequent revelations seem to make it perfectly plain that the pro-slavery members hoped that by making the State so large it would soon be necessary to divide it by an east and west line, thus adding one State to the South. Francis Lippitt, writing on this point, said : "I was afterward informed that this boundary line had been adopted at the instigation of a clique of members from the Southern States, with the view to a subsequent division of California by an east and west line into two large States; and further to the future organization of the southern of these two State as a slave State — an event which would have been quite certain." The controversy deepened. Extreme bitterness began to be manifested, for the friends of slavery realized that this was their last hope of forming a new slave State from the newly acquired territory. But the people of Cali- fornia had asserted themselves in unequivocal terms, the convention itself had pronounced positively against slavery, the intriguing of the few could not avail. On October 8, Hastings' substitute, proposing an intermediate line intersecting the Nevada desert, was quickly adopted, and ordered engrossed for third reading. But on McDougal's motion, a reconsideration was secured, and the advocates of the Sierra Nevada boundary again grew confi- dent of success. Once more were they to be disappointed ; great was their consternation when the committee report for the larger boundary was again concurred in by a vote of twenty-nine to twenty-two. Upon the announce- ment of the vote the utmost excitement and confusion prevailed. McCarver moved to adjourn sine die. Snyder exclaimed, ''Your constitution is gone! Your constitution is gone !'' The wrecking of the entire work of the con- vention was narrowly averted. But the vote to engross had not been taken. By dint of exceeding activity, the defeated party succeeded in securing a second reconsideration on the following day. A number of delegates had apparently not understood all the bearings of their afiirmative votes. Lip])itt went from a sick bed under laudanum and spoke against the motion to engross, which was finally lost ; and Jones' proposition fixing the present boundary was adopted by an overwhelming majority. Thus was settled the most vexed and exciting question of the convention. 42 History of the Bench and Bar of California. The arduous labors were past, the constitution was completed. It was Saturday, October 13. 1849, ^^'^^ the closing events were highly dramatic. With the dawning of that day of beauty and sunshine there dawned a new era for California. A most affecting part of the days proceedings occurred after the convention had adjourned sine die. The delegates repaired to Gov- ernor Riley's residence in a body, where, after a cordial greeting, that pioneer among pioneers, Captain Sutter, warmly expressed to the Governor the thctnks of the convention for his aid and co-operation. General Riley was deeply affected ; his reply was "a simple, fervent, and eloquent recital of a patriotic desire for the good of California." "At the conclusion of General Riley's remarks," continues an interesting contemporaneous account, "three cheers were given for the 'Governor of California.' three for Captain John A. Sutter, and three more for the new State; and then, after partaking of the refresh- ments provided by the hospitality of the Governor, the company separated to make their final preparations for departure to their respective homes." The salient features of the constitution of 1849 ^^^ well known. It was advanced in character, liberal, and thoroughly democratic. The achieve- ment illustrates the great capacity of the American people for self-government under the most trying conditions. The document embodied the principles of modern political and jurisprudential philosophers and received the high- est commendations from all sources as the "embodiment of the American mind, throwing its convictions, impulses, and aspirations into a tangible, permanent shape." Contrary to the expectation of some of its framers. it endured for thirty years as the fundamental law of the Empire State of the Pacific. All honor then to those earnest, loyal pioneers whose devotion led them to forsake the possibility of sudden fortune for the more enduring, more noble work of building a great commonwealth. California's constitution was quickly carried to every town and camp and rancho. Candidates for office took the field, political speeches began to be heard in the land, and with alacrity events took on the aspect of an ordinary campaign. A stormy election day, November 13, was responsible for the light vote, Init as Governor Riley had anticii)ated. the constitution was ratified l)y a vote that was almost unanimous. For the ofiice of Governor Peter H. Burnett received more than double the vote given his leading opponent, and in the contest for Lieutenant Governor John McDougal was successful. Edward Gilbert and George W . Wright were elected Representatives in Con- gress. The senators and assemljlymen-elect met in San Jose, December 15, on which date the legislature was temporarily organized. On Thursday, Decem- ber 20, 1849, the State government of California was established. Governor- elect Burnett was inaugurated, and Governor-General Riley issued the fol- lowing : History of the Bench and Bar of California. 43 PROCLAMATION. To THE People of California. A new Executive having been elected and installed into office, in accordance with the provisions of the Constitution of the State, the undersigned hereby resigns his powers as Governor of California. In thus dissolving his official connection with the people of this country, he would tender to them his heartfelt thanks for their many kind attentions, and for the uniform support which they have given to the measures of his administration. The principal object of all his wishes is now accomplished — the people have a government of their own choice, and one which, under the favor of divine Providence, will secure their own prosperity and happiness, and the perma- nent welfare of the new State. Given at San Jose, California, this 20th day of December, A. D. 1849. B. RILEY, Brevet Brig. Gen., U. S. A., and Governor of California. By the Governor: W. H. Halleck, Brevet Captain and Secretary of State. Whatever legal objections might be raised to putting into operation a State government previous to the approval of Congress, General Riley judged that, "these objections must yield to the obvious necessities of the case; for the powers of the existing government are too limited, and its organization too imperfect, to provide for the wants of a country so peculiarly situated, and of a population which is augmenting with such unprecedented rapidity." California was a State, but had not gained admission to the Union. Our delegation to the Federal government, including Fremont and Gwin, who had been duly elected to the United States Senate, and Representatives Gilbert and Wright, set out in January, 1850, for Washington, and in March they laid before the two houses certified copies of the new constitution, together with their credentials, and in a long memorial requested "in the name of the people of California, the admission of the State of California into the Ameri- can Union." Meanwhile the question of the admission of California had become a topic of absorbing interest in Congress. Southern statesmen were almost beside themselves at the imminent prospect of losing the richest country of the Mexican cession. The question, in itself of the gravest difficultv, was greatly complicated by other issues, and the passions that were aroused seemed leading to certain and ominous conflict, when Henry Clay determined to effect a compromise. The result is known to the world. It is unnecessary to review the details of that memorable struggle over the Omnibus Bill ; let it suffice to say that although Congress had repeatedly disappointed the people of California and had caused long and vexatious delay, no sound argument based on facts could now be adduced against the admission. The stern logic of facts was plainly against the South, even though the Compromise of 1850 was a seeming victory for the slave power. The exclusion of slavery from California was a rebuke at once extremely irritating and fraught with peril- ous import. It is reported how that Calhoun invited Gwin to an interview, in the course of which the dying Senatrir and cham])ion of the South, "in solemn words predicted, as an effect of the admission [of California] the 44 History of the Bench and Bar of California. destruction of the equilibrium between the North and South, a more intense agitation of the slavery question, a civil war, and the destruction of tlie South." Nevertheless, the debates that had been protracted many months, coming- at last to an end, the California bill was finally passed in the house, Septem- ber 7, by a vote of one hundred and fifty to fifty-six, and two days later the act received the approval of the President. If, then, the 20th of December, 1849, IS the birthday of the State of California, September 9. 1850, must forever be memorable as the day on which the lusty infant was adopted, not without protest, into the great unity of the sisterhood of commonwealths, the United States of America. "O California, prodigal of gold, Rich in the Treasures of a wealth untold, Not in thy bosom's secret store alone Is all the wonder of thy greatness shown. Within thy confines happily combined, The wealth of nature and the might of mind, A wisdom eminent, a virtue sage, Give loftier spirit to a sordid age." ROCKWELL D. HUNT, Ph. D., Professor of History and Political Science, University of the Pacific. San Jose, Cal. ADOPTION OF THE COMM ON LAW BY THE EDITOR j?9 !& tSb t& G?3 dfe c& eSb & & HISTORY of the BENCH and BAR of CALIFORNIA £5^e^e!^6^6^^e^«^. e^e^ ADOPTION of the COMMON LAW In his first message to the legislature at the first session, December 21, 1849, Gov. Peter H. Burnett, who was a lawyer from Tennessee, after declar- ing that he had given the subject his most careful attention, recommended the adoption of the following codes : 1. The definition of crimes and misdemeanors as known to the Common Law of England. 2. The English Law of Evidence. 3. The English Commercial Law. 4. The Civil Code of Louisiana. 5. The Louisiana Code of Practice. He took occasion to say: These codes, it is thought, would combine the best features of both the civil and the common law, and at the same time omit the most objectionable portions of each. The civil code of Louisiana was compiled by the most able of American jurists — con- tains the most extensive and valuable references to authorities — has undergone no material changes for the last twenty years — and for its simplicity, brevity, beauty, accuracy, and equity, is perhaps unequalled. Its provisions almost entirely relate to general subjects, not local, and would be quite applicable to the condition and circumstances of the State. The civil law, the basis of the Louisiana civil code, aside from its mere political maxims, and .so far only as it assumes to regulate the intercourse of men with each other, is a system of the most refined, enlarged, and enlightened i)rinciples of equity and justice. So great a portion of the cases that will arise in our courts, for some years to come, must be decided by the principles of the civil law, that the study of its leading features will be forced upon our judges and members of the bar. The civil code of Louisiana being a mere condensation of the most valuable portions of the civil law, would greatly lessen the labors of our jurists and practitioners; and from the simplicity and yet comprehensive nature of its provisions, a general knowledge of the leading principles of the law iriight the more readily be diffused among the people. A sufficient number of copies of both the civil code and the code of practice could be procured in New Orleans at a much less cost than they could be published here. 48 History of the Bench and Bar of California. On the first of February following, Senator David F. Douglass, of Stock- ton, who was to be some years later Know Nothing secretary of State, pre- sented in the senate the petition of certain members of the San Francisco bar, praying that the legislature "retain, in its substantial elements, the system of the civil law, as proposed by His Excellency the Governor, in preference to the English Common Law." The petition was headed by John W. Dwinelle, who was a studious man, destined to vAn considerable reputation in law and literature. He was from New York, and then aged 32 years. The petition was read, ordered to be printed, and referred to the committee on the judiciary. Horace Hawes, also a lawyer from New York, in his inaugural address, as prefect of the district of San Francisco, delivered before the ayuntamiento, or town council, in September, 1849, had observed that "the laws now in force in this country, when w'ell understood, may not be found so inadequate to the purposes of good government as has generally been supposed. It is, perhaps, the abuses and maladministration which may have existed under the former government, rather than any defect in the laws themselves, which have brought them into disrepute." The civil law, already intrenched on the field of action, and thus powerfully recruited, seemed to have as secure a tenure here as in Louisiana. A week prior to the coming of this petition into the senate, Hon. J. C. Brackett of Sonoma, introduced into the assembly the following resolution : That the committee on the judiciary be and they are hereby instructed to report to this house a brief and comprehensive act, substantially enacting that the common law of England, and all statutes and acts of parliament down to a certain reign, or to some year of a certain reign, which are of a general nature, not local to that king- dom, excluding, if advisable, any named statute or any particular portion of any named statute; which common law and statutes are not repugnant to or inconsistent with the constitution of the United States, the constitution of this State, and statute laws that now are or hereafter may be enacted, shall henceforth be the rule of action and decision in the State of California. On motion of the author, the resolution was laid on the table for future consideration. In the senate, on February 27th, the judiciary committee submitted its report on the so-called San Francisco petition. The committee was of one mind. It was composed of Elisha O. Crosby of Sacramento, Nathaniel Bennett of' San Francisco, and T. A. Vermeule of Stockton. The report was signed by the first-named only, as chairmanj and it came to be regarded generally as his composition. Many have declared that Judge Bennett was the author, how- ever. A mystery really attached to this question. The editor, about 1878, had a dispute with Geo. W. Tyler about the authorship of this historic paper, Tyler asserting that Judge Crosby had told him that he (Crosby) was the author. Afterwards, Judge Tyler informed the editor that he had seen Judge Crosby again, and that the latter had disclaimed the authorship, and credited the same to Judge Bennett. History of the Boich and Bar of California. 49 Many years after this, in 1894, we requested Judge Crosby to give us some notes of his life, and we received from him in his own hand, and have pre- served, among other statements, the following: "I was the author of the report and bill adopting the common law, the bill organizing the Supreme and District Courts, etc., etc." But as to the bill, the printed journal credits the authorship as we give it hereinafter. The report was probably the joint product of Judge Crosby and Judge Bennett. Elisha Oscar Crosby was born in Tomkins county. New York (as he told us, in 1894) when, in his old age, he was holding the office of justice of the peace in Alameda. He was born in 1818. He was admitted to the bar of the New York Supreme Court July 14, 1843. Coming to California in 1849 he was admitted to the bar by the Supreme Court here on July 19. 185 1. He was admitted to the bar of the United States Supreme Court at Washington, on December 6, 1865. He was a member of our first constitutional convention, 1849; prefect of the Sacramento district in the same year; and a State senator at the first and second sessions of the legislature. From 1852 to i860, he practiced law in San Francisco. President Lincoln appointed him minister to Guatemala, and he held the office from March 22, 1861 to 1865. He died in Alameda a few years ago, nearly four score years of age. This committee report (whoever wrote it) ought, perhaps, to be set forth in full in this History ; but we will give the more salient parts as follows : The petition, praying, as it does, that the legislature will retain, in its substantial elements, the system of the civil law, distinctly presents the alternative of the adoption of the common, or of the civil law, as the basis of the present and future jurisprudence of this State. A choice between these two different, and in many respects conflicting systems, devolves upon this legislature; and, we think, we do not over-estimate the importance of the subject, in expressing our conviction that this choice is by far the most grave and serious duty which the present legislature will be called upon to per- form. It is, in truth, nothing less than laying the foundation of a system of laws, which, if adapted to the wants and wishes of the people, will, in all probability endure through generations to come, — which will control the immense business transactions of a great community, — which will direct and guide millions of human beings in their personal relations, — protect them in the enjoyment of liberty and property, — guard them through life, and dispose of their estates after death. Actuated by these consid- erations, and impressed with the necessity of mature deliberation and an unbiased decision, your committee have felt it their duty to submit to the indulgence of the senate a more full and detailed report upon the matter referred to them, than they should otherwise have felt themselves justified in doing. After observing that the committee had ascertained that the San Francisco bar then embraced about one hundred members, and that a largely attended bar meeting had just recommended tlie common law, whereas the petition in favor of the civil law was signed by only eiglitcen attorneys, tlie rcj^ort mo- ceeded : But before entering upon the subject in detail, we would premise that no one for a moment entertains the idea of establishing in California the whole body of either 50 History of the Bench and Bar of California. the common or the civil law. There are in each principles and doctrines, political, civil and criminal, which are repugnant to American feelings, and inconsistent with Ameri- can institutions. Neither the one nor the other ever has been, or ever can be, unquali- fiedly adopted by any one of the United States. Thus, in Louisiana, where the civil law prevails, and in the rest of the States, in which the common law is recognized, great and radical additions, retrenchments, and alterations have been made in the par- ticular system which each has taken as the foundation of its jurisprudence. The Con- stitution of the United States swept away at once the entire political organization as well of the common as of the civil law. The several State constitutions make still further inroads, not only into the political, but also into the civil and criminal depart- ments of both systems ; and the statute law of each State eradicates many harsh doc- trines, and abolishes many oppressive and tyrannical provisions, and in their place substitutes positive rules of action, milder and more enlightened in their nature, more applicable to our political organization, and more congenial with the cultivated feel- ings and liberal institutions of our people. But still the great body of each system remains untouched. Such is the wonderful complexity of human affairs — a complexity which must always increase more and more in proportion to the advance of commerce, of civilization, and of refinement — that of the immense multitude of questions which are brought before your courts for adjudication, but very few arise under, or are dependent upon, or can be controlled by, constitutions or express statutory laws. Examine the reports of the different States, Louisiana amongst the rest, and it will be found that a precise rule has been laid down by statute for scarcely a tithe of the cases which the courts have been called upon to decide; and should the futile attempts be made to provide, in advance, for every contingency which may occur, your volumes of legislation would be increased to a number that, to apply sacred language to a pro- fane subject, "the world would not contain them." Tlie report next entered into an elaborate statement conveying a general idea of the two great systems of jurisprudence, and then particularly contrasted them as follows : To commence, then, with the domestic relations. The civil law regards husband and wife, connected it is true by the nuptial tie, yet disunited in person, and with dissevered interests in property. It treats their union in the light of a partnership, no more intimate or confiding than an ordinary partnership in mercantile or commer- cial business. Whereas the common law deems the unseen bond which unites husband and wife, as so close in its connection, and so indissoluble in its nature, that they become one in per.son. and for most purposes one in estate. At the same time, it puts the burden of maintenance and protection where it rightfully belongs, and makes the husband, as Providence designed he should be, in truth and reality the head of the household. The concessions which it makes to the wife, in respect to property, by compelling the payment of her debts and vesting her with an estate in dower, are a full compensation for the sacrifices which it requires her to make, and an ample equivalent for the conununion of goods allowed her by the civil law. The result is, that in no country has the female sex been more highly respected and better pro- vided for — nowhere has woman enjoyed more perfect legal protection, or been more elevated in society; and nowhere has the nuptial vow been more sacredly observed, or the nuptial tie less often dissevered, than in the common law countries — England and the United States. The civil law holds the age of majority in males, for most of the ordinary pur- poses of life, at twenty-five years. Even after this, the son continues in many respects subject to the parental authority until it is dissevered in one of six specified modes. This system retains man in a continued state of pupilage and subordination from earliest infancy, until in some cases his locks become hoary with age. But the common law absolves the age of twenty-one from parental restraint, and clothes it with the complete panoply of manhood. It bids the youth go forth into the world, to act, to strive, to suffer. — an equal with his fellow man — to put forth his energies in the service History of the Bench and Bar of California. 51 of his country, or in the eager strife for the acquisition of wealth or the achievement of renown. Hence, under the latter system, the activity, the impetuousity, the talents of early manhood, stimulated by fresh aspirations of ambition, or love of gain, are, at the earliest practicable period, put under requisition and brought into exercise, in developing the resources, and adding to the wealth and glory of a State; whilst, under the former, they stagnate for lack of sufficient inducement to action, and are to a great degree lost. Whilst the fundamental principles of domestic society thus differ in the two systems, an equal diversity runs throughout all the deductions therefrom ; and we are convinced that, in the several relations above noticed, and also in that of guardian and ward, contrasted with tutor or curator and pupil, there are nicer distinctions and a greater multiplicity of rules and qualifications in the civil law than in the common law. Again, in relation to mercantile transactions : In the civil law the purchaser of property may, within the period of a certain limitation, in some countries, four, and in others, two years, come into court and claim, under the doctrine of lesion, that the goods purchased by him were worth only a part of the price which he paid therefor. Thus A. sells property to B. in a perfectly fair sale, without deceit or false representa- tion. After the expiration of some months, or it may be years, B. brings suit, and alleges that he paid twice the value of the property, and compels A. to make restitu- tion. But the common law in such cases, where no fraud appears, and no false repre- sentations are made, leaves each party to act upon his own responsibility, and for his own interest, as his judgment shall dictate If time and space permitted, and it would not be occupying too much attention of the senate, we might trace the same general principle of distinction through various other departments of the two systems, through their provisions for the tenure and transfer of real estate, for the transmission of inheritances and successions, for the execution and validity of last wills and testaments, and the distribution of property in pursuance of them, and for the enumeration of the powers and duties of executors, administrators, and trustees ; but we must pass them by, and hasten to other consid- erations We by no means concede the position that the civil law is in full force in this State at the present time. It is extremely uncertain to what extent it ever did prevail. Situated at so great a distance from the Mexican capital, occupying months in the interchange of communications with that central point of law and legislation, con- nected with it by the fragile tie of common descent, rather than by any intimate com- munion of interests or sympathy of feeling, exposed to frequent revolutions of the general and departmental governments, finding but little stability in the Mexican con- gress, little convenience for the promulgation of its laws, and less power to enforce them, the people of California seem to have been governed principally by local cus- toms, which were sometimes in accordance with civil law and sometimes in contraven- tion of it. However this may be, it is very certain that it now prevails to but a limited extent, and equally certain that the. common law controls most of the business transac- tions of the country. The American people found California a wilderness — they have peopled it; they found it without commerce or trade — they have created them; they found it without courts — they have organized them; they found it destitute of officers to enforce laws — they have elected them; they found it in the midst of anar- chy — they have bid the warring elements be still, have evoked order out of confusion, and from the chaotic mass have called forth a fair and beautiful creation. Through- out all this they have taken the common law, the only system with which they were acquainted, as their guide. Their bargains have been made in pursuance of it — their contracts, deeds, and wills have been drawn up and executed with its usual formalities — their courts have taken its rules to govern their adjudications — their marriages have been solemnized under it — and, after death, their property has been distributed as it prescribes. Are you to hold all or a great portion of these things as naught? Will you overturn or invalidate the immense business transactions of a great conununity? And yet to this must you come, if you say that the civil law is in force throughout the State. 52 History of the Bench ajui Bar of California. The petitioners ask, in substance, for the adoption of the English definition of crimes, the English law of evidence, the English commercial law, and the civil code of Louisiana. Without doubting that a harmonious and symmetrical system might be deduced from them all, by the long and patient labor of years, of men fully adequate to the task, we must, nevertheless, be allowed to suggest our opinion, that were we to attempt to adopt them, as they are, without more labor devoted to reconciling their jarring provisions than any legislature would have either the will or the time to bestow, we should have a system of laws which would be no system at all — a system of contradictions and absurdities — a rule here conflicting with a rule there — the same principles thrice reiterated, and each time in different terms, and in a new shape. After a number of other reasons, the committee recommended that the courts should ])e governed in their adjuchcations Ijy the Engiish common law. "as received and modified in the United States ; in other words, by the Amer- ican Common Law." The report was accepted, and, on motion of Senator Elcan Heydenfeldt, of San Francisco, brother of the jurist, Solomon Heydenfeldt, it was ordered that 500 copies be printed. In the assembly a week later, Mr. Brackett, pursuant to notice, and in the spirit of his resolution before quoted, introduced a "Bill Concerning- the Com- mon Law," which was a bill adopting that system substantially. On the next day, Edmund Randolph, of San Francisco, a Virginian, moved to refer the bill to a select committee, with instructions to substitute "the English law of evidence, and English commercial law, as understood in the courts of the United States." This was defeated by a vote of ten ayes to sixteen noes, the majority including Mr. Brackett, A. P. Crittenden, and the since distinguished Judge, E. W. McKinstry. A. P. Crittenden, a Kentuckian, who afterwards held for a long period a place in the front rank of the State bar, and who was killed by Mrs. Laura Fair on the Oakland ferry ])oat, November 3, 1870, then moved to refer the bill to a select committee, with instructions to substitute the following ever- memorable words : "The Common Law of England, so far as it is not repugnant to or incon- sistent with the Constitution of the United States or the Constitution or laws of the State of California, shall be the rule of decision in all the courts of this State." This was agreed to. On the same day Mr. Crittenden as chairman of the appointed committee, reported the substitute above, and it was adopted by a vote of seventeen to six, Mr. Randolph being among the noes. It was ordered, without dissent, that the title of the bill be changed from "Concerning the Common Law," to "Adopting the Common Law." In the senate, April 12, Hon. W. D. Fair, Whig senator from San Joaquin, husband of Laura Fair before named, from the judiciary committee, to whom had been referred the assembly bill, now entitled "An .Act Adopting the Com- mon Law," reported the same without amendment, and the bill was passed at once, the rules having been suspended for that purpose. There w^as no I History of the Bench and Bar of California. 53 opposition and the roll was not called. The bill became a law, by the signature of the Governor, on the 12th of April, 1850. The words of this act were incorporated into the political code of the State, comprising section 4468 thereof, but it is provided in all of the codes, which took effect on January i, 1873, (section 4 of each code) as follows: "The rule of the common law, that statutes in derogation thereof are to be strictly construed, has no application to this code. The code establishes the law of this State respecting the subjects to which it relates, and its pro- visions and all proceedings under it are to be liberally construed, with a view to effect its objects and to promote justice." THE EDITOR. THE TREATY OF GUADALUPE HIDALGO and PRIVATE LAND CLAIMS HON. JOHN CURREY John Currey I !;?3 •j'a & ofe & t?3 uo HISTORY of the BENCH and BAR of CALIFORNIA ^&''l^'=r^'^i? 9:' ; - 1? TREATY o/ GUADALUPE HIDALGO and PRIVATE LAND CLAIMS At the date of the treaty between Mexico and the United States, known as the Treaty of Guadalupe Hidalgo, California was sparsely settled by a people who were mainly Alexican citizens, and who for the most part were engaged in pastoral occupations. The treaty was ratified and exchanged in May, 1848. and on the 4th of July in that year was made public by the proclamation of President Polk, in which he declared that he "caused the said treaty to be made public to the end that the same and every clause and article thereof may be observed and fulfilled with good faith by the United States and the citizens thereof.'' By this treaty Mexico ceded to the United States the territories of Alta California and New Mexico and the country lying north of the Gila river. The Treaty contained stipulations providing for the protection and security of the inhabitants of the ceded territories, in the free enjoyment of their liberty, property and religion. Though stipulations of the character here mentioned were not absolutely essential for the purposes declared, they were such as are usual, and, it may be said, always required by the nation ceding territory, and readily accepted by the nation acquiring the same. *'Tt is the usage of all nations of the world," said the Coiu't in the Arredondo case (6 Peters, 712), "when territory is ceded, to stipulate for the property of its inhabitants. An article to secure tliis object so deservedly held sacred in the view of policy as well as of justice and humanity, is always required and never refused." Stipulations of this kind render certain the obligations of the new govern- ment to the people transferred to a new sovereignty, who are able to better understand an express promise than an obligation which is imposed by the law of nations of which they are generally ignorant: and besides this, the inhabitants of the ceded territory, being promised protection in the treaty itself, are thereby inspired with confidence in and loyalty to the government of which thev necessarily become a constituent portion. 58 History of the Bench and Bar of California. Vattel says, "Every treaty must be interpreted as the parties understood it when the act was proposed and accepted." The Treaty of Guadalupe Hidalgo, by its eighth and ninth articles, provided for making such of the inhabitants of the territories as might so elect, citizens of the United States, and also for their protection, and further for the protection of those Mexicans residing in the territories, who might elect to remain citizens of the Mexican Republic, in the free enjoyment of their liberty, property and religion, without restriction. These stipulations were in efifect as ample and comprehensive as the stipulations of the Third Article in the treaty between France and the United States, by which the latter government acquired the Louisiana Territory in 1803; and in substance as full as provided in the treaty by which Spain ceded to the United States the territories of the two Floridas in 1819. As early as 1824 the Mexican Republic enacted a law providing for the granting of lands in her territories to her citizens who would accept and occupy them. This law was supplemented by a system of regulations adopted in 1828, to facilitate the granting of lands, not to exceed a specified amount to any one person. The law of 1824 and the regulations of 1828 provided a mode or system consisting of successive proceedings and steps, by which grants of land could be made. In a few instances all the steps of the pro- ceedings, essential to the complete transfer of the title in full property, were performed and fulfilled, so that in these cases the particular grantee became the owner by perfect title — title in fee simple absolute — of the land described and covered by his perfected title. But the great majority of land claims, grants or titles, as they were indifferently denominated, were imperfect and inchoate claims, grants or titles ; and they were in this condition for the most part, when California was ceded to the United States. From this statement it will be observed that at the date of the treaty, there were two classes of land claims in California, both derived from the former government ; one of which consisted of perfect titles — titles in fee simple absolute — by which the holders thereof were seized, as owners in full property of the lands granted ; the other class consisted of equitable claims to lands, the title to which had not been fully consummated. They were denom- inated incipient, inchoate, or imperfect grants or titles. It will be noticed that holders of the last kind of claims were not the owners of the lands claimed, for complete titles thereto had not passed to them from the Mexican government. To such lands the Mexican government held the legal title, When the cession of California was made to the United States, in full property, sovereignty and dominion. "By accepting the cession, the United States put itself in the place of the former sovereignty and became invested with all its rights, subject to all its concomitant obligations to the inhabitants. Both were regulated by the law of nations, according to which the rights of property are protected, even in the case of a conquered country, History of the Bench and Bar of California. 59 and held sacred and inviolaljle. when it is ceded Ijy treaty with or without any stipulation to such effect." So said the court in Strother against Lucas (i2 Peters, 435). The passage here quoted was repeated and applied to the California case of Teschmacher against Thompson (18 Cal. 23-24) by Mr. Chief Justice Field, who held that in respect to land claims which were of an equitable nature, but as yet unperfected, it w'as the conceded duty of the United States to provide the mode and means for their confirmation and location, and to grant legal titles therefor to the persons entitled in equity to such lands. He said, "By the law of nations those rights, in the language of our Supreme Court, were 'sacred and inviolable,' and the obligation passed to the new government to protect and maintain them. The obligation was political in its character, binding on the conscience of the new government, and to be exe- cuted by proper legislative action, when the requisite protection could not be afforded by the ordinary course of judicial proceedings in the established tribunals or by existing legislation." Here the learned Chief Justice distinguished between the legislative and judicial authority as to the subjects of their respective jurisdictions. The legislative authority purely political, was to be exercised and executed by appropriate legislation for the requisite protection of property ivhen such pro- tection could not he afforded in the ordinary course of judicial proceedings in the established tribunals of the country. Perfected titles are the titles which can be afforded "the requisite protection" in the ordinary course of judicial proceedings. Not so in respect to titles of an incipient, inchoate and unperfected character. These are within the jurisdiction' of the political department of the government. The obligations of our government to the people of the ceded territories, in respect to their land claims, and which was to be performed and fulfilled by the political department of the government by appropriate legislation, was in the very nature of the subject, limited to the class of claims which needed the aid of the government to render them perfect titles. A title already perfect needed no such aid. Tt was not in the power of Congress to make titles already perfect better titles ; nor was it within the constitutional power of Congress to impair or destroy perfect titles. It is quite manifest that at the time of the passage of the Act of Con- gress of March, 1851, entitled, "An Act to ascertain and settle the private land claims in the State of California," it was the general belief in Congress that all land claims in California, derived from the Spanish and Mexican governments, were inchoate and imperfect, mere equitable claims, which our government, by treaty stipulations and the law of nations, was bound to protect. It is reasonable to suppose that Congress, in this belief, passed the Act of March, 185 1. The jurisdiction of Congress in the premises is found in Section 3 of Article TV of the Constitution, in these words: "The Congress shall have / 60 History of the Bench and Bar of California. power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States." It is admitted that Congress had power to make all laws necessary and proper for carrying into execution this power, which appears to be, to make disposition of, and to make needful rules and regulations respecting the property of the territories and other property belonging to the United States. This provision relates solely to the subject matter of public property. It, in no sense, affects private property, nor is there found in the Constitution any provision which gives to Congress power to dispose of the property of private persons, either directly or indirectly, by the enactment of a law for the purpose, or which shall have such effect by any means whatever, except by process of condemnation for public use with just compensation therefor. The Act of 185 1 provided for the creation of a board of commissioners for the purpose declared in the act. The commissioners were authorized to receive petitions for the confirmation of private land claims and to hear and examine documentary evidence and the testimony of witnesses and to decide as to the validity or invalidity of such claims. The eighth section of the act provided that "Each and every person claiming lands in California, by virtue of any right or title derived from the Spanish or Mexican government, shall present the same to said commissioners when sitting as a board, etc. ;" and by the thirteenth section of the same act, Congress pronounced judgment against all who should fail to present their claims to the commissioners as required, in the following words : "All lands, the claims to which shall not have been presented to the said commissioners within two years after the date of this act. shall be deemed, held and considered a part of the public domain of the United States.'' The words of the eighth section, viz., "Any right, or title," and the words of the thirteenth section, "All lands, the claims to which shall not have been presented," are sufBciently comprehensive to include all claims, perfect and imperfect, as to title; and if Congress had the power under the Constitution and under the treaty, of equal force and dignity with the Constitution itself, to require as provided in the eighth section, and to declare the penalty, as provided in the thirteenth section, there could be no doubt as to the disastrous consequences to the holders of perfected titles to lands derived from the former government, who had declined the submission of their claims to the jurisdiction of the commissioners. It should be remembered that the Treaty of Guadalupe Hidalgo became, at the time of its ratification and exchange, an integral part of the supreme law of the land, binding upon each and every department of the go\-ernment, which the political branch of the government could not and cannot alter or abrogate, either directly or indirectly, either by expression or implication, so as to disturb or destroy vested rights of property secured by it. or brought into existence under or in pursuance of it. I History of flic Bciuii and Bar of California. 61 Notwithstanding the stipulations of the treaty and the Constitution, which declares that no person shall be deprived of life, liberty or property without due process of law, and that private property shall not be taken for public use without just compensation, and other provisions of the organic law affecting the subject, the Supreme Court, in the case of Boteller et al. against Dominguez, decided the eighth and thirteenth sections of the Act of 185 1 to be constitutional in their application to perfect titles, to the same exent as to titles or grants of an inchoate and imperfect character. It is respectfully submitted that this decision is not supported, either upon principle or by authority. An act of the legislature is not due process of law. This has been so held in many decisions of the courts and by elementary writers on the subject. "Law of the land, due process of law," said Chancellor Kent, "means Inw in its regular course of administration through courts of justice." Another great judge (Chief Jtistice Ruffin, of North Carolina) said, "The law of the land does not mean merely an act of the legislature, for that construction would abrogate all restrictions on legislative authority. The clause means that statutes, which would deprive a citizen of the rights of person or property, without a regular trial according to the course and usage of the common law, would not be a law of the land in the sense of the Constitution." Such being the law, how is it that Dominguez could be held, through the operation of the Act of 1851. to have lost his lands which he possessed under a perfect title derived from Mexico? The title of Dominguez. as it appeared before the court, was a perfect title, and so the court conceded it to have been at the date of the treaty of cession, and so in effect held it to be. until he lost it, by failing to submit it to the jurisdiction and judgment of the commissioners. The Supreme Court, during the period when Marshall was its Chief Justice and for some years afterwards, had, at various times, occasion to deal with questions of private rights of property of the inhabitants of the ceded territories of Louisiana and Florida, existing at the respective dates of these cessions. The most of such property rights were of an imperfect and inchoate nature, but there were instances calling for the expression of opinic^ns in relation to rights of property which had become perfected, in all of which the court, in effect, declared them to be beyond the power of Congress to im|)air or destroy. In Strother against Lucas, the coiu't, in speaking of the stipulation of the Louisiana treaty for the protection of the people of the ceded country, said, "Without it the titles of the inhaliitants would remain as valid under the new government as under the old ; and these titles, at least so far as they are con- summate, might be asserted in the courts of the I'nited States independent of the treaty stipulation." Tn the case of Clark (8 Peters, 445), Mr. Chief Justice Marshall, in s])eaking of the a])i)ointment of boards of commissioners to ascertain the validity and location of grants of lands in Florida, said, "For this pur])ose boards of commissioners were apixiintcd with extensive powers, 62 Hislory of the Bench and Bar of California. and great progress was made in the adjustment of claims. But neither the laze of nations nor the faith of the United States zconld justify the legislature in authori:;iiig these boards to annul pre-existing titles, which consequently might he asserted in the ordinary courts of the country against any grantee of the American government." And in the case of Wiggins (14 Peters, 350), the court said that "The perfect titles made by Spain before the 24th of Janu- ary, 1818, within the territory, are intrinsically valid and exempt from the provisions of the eighth article, is the established doctrine of this court and they need no sanction from the legislative and judicial de])artments of the country." In Maguire against Tyler (8 Wallace, 650), the court said, "Complete titles to lands in the territories ceded by France to the United States, under the treaty concluded at Paris on the thirteenth day of April, 1803, needed no legislative confirmation, as they ■zeere fully protected by the third article of the treaty of cession." The eighth and ninth articles of the Treaty of Guadalupe Hidalgo, as finally ratified and exchanged, mean the same as the third article of the Louis- iana treaty, as represented and explained by the commissioners of the United States to the Mexican minister of foreign affairs at the city of Queretaro, on the 26th day of May, 1848. This appears by a protocol, signed by such commissioners and the Mexican minister on that day. It is believed there are no decisions of the Supreme Court holding a differ- ent doctrine on the subject under consideration, from those already cited, except some of an obiter dicta character in relation to the construction of the Act of 185 1, until the decision of the case of Dominguez. The Supreme Court of California always regarded the private land claims existing in the territories ceded, at the date of the treaty of Guadalupe Hidalgo, as standing" on the same ground as those of like character derived under the Louisiana and Florida treaties, and that by the Treaty of Guadalupe Hidalgo such private land claims were as fully guaranteed protection as like claims were guaranteed protection under the Louisiana and Florida treaties, and that the decisions of the Supreme Court of the United States in those cases were applicable to the California cases. Perfected titles, it was ])elieved by the Cali- fornia courts, upon principle and authority, needed no aid from Congress to make them what they already were, but that the holders of such titles and the owners of the lands covered by them, were competent to assert their rights in the estal)lished courts of the country, as might be necessary, against all intruders and even against any adverse action of the L^nited States and its grantees. In Estrada vs. Murphy (19 Cal., 269), Mr. Chief Justice Field suggested that doubts might exist as to the validity of the legislation of Congress, so far as it required the presentation to the board of land commissioners of claims when the lands were held by perfect titles acquired under the former govern- History of the Bench and Bar of Califoriiia. 63 ment. In Gregory vs. McPherson (13 Cal., 571), the court, in alluding to a perfected title, held that no forfeiture accrued of such a title by a failure to present it to the board of commissioners. The Supreme Court of the United States in Beard vs. Federy (3 Wal- lace 490), per Field, justice, said, "By the Act of March 3, 1851, the govern- ment has declared the conditions under which it will discharge its political obligations to Mexican grantees. Tt has there required all claims to land to be presented within two years from its date, and declared in effect that if, upon such presentation they are found by the tribunal created for their consideration, and by the courts on appeal to be valid, it will recognize and confirm them, and take such action as will result in rendering them perfect titles. But it has also declared in effect, by the same act, that if the claims be not thus presented within the period designated, it will not recognize nor confirm them, nor take any action for their protection, but that the claims will be considered and treated as abandoned.'' And then the court further said, "It is not necessary to express any opinion of the validity of this legislation in respect to perfect titles acquired under the former government. Such legislation is not subject to any constitutional objection so far as it applies to grants of an imperfect char- acter, ivhich require further action of the political department to render them perfect." It thus appears that the court was not ready in 1865 to hold the Act of Congress constitutionally valid in so far as perfect titles could be deemed to be affected by it. In Waterman vs. Smith (13 Cal., 419-420), the same learned Justice had occasion to interpret and construe the 15th section of the Act of 1851. The question in that case arose as to the effect of a final confirmation and a patent issued thereon, and the interests of third persons claiming the land in contro- versy under an inchoate and imperfect grant which had been confirmed, but for which no patent had been granted. The section here mentioned provides, "that the final decisions rendered by said commissioners or by the District or Supreme Court of the United States, or any patent to be issued thereon under this act, shall be conclusive between the United States and the said claimants only, and shall not affect the interests of third persons." In disposing of the question the court said, "The patent is conclusive evidence of the right of the patentee to the land described therein, not only as between iiimself and the United States, but as between himself and a third person, who has not a super- ior title from a source of paramount proprietorship." And the court further said, "The third persons against whose interests, by the 15th section of the Act of 1 85 1, the final confirmation and patent are not conclusive, are those whose titles at the time are such as to enable them to resist successfully any action of the government in respect to it." This decision was followed by a number of others subsequently rendered by the same eminent jurist, while chief justice of that court, in equally cogent language. 64 History of the Bench and Bar of California. I The decisions of the same court, which were made after the time of Mr. Justice Field, are in accord with the decisions of the State court referred to, and also upon principle in accord with the decisions of the United States in like cases. It will be noticed that the doctrine declared in Waterman against Smith, is the same as in Clark's case in 8th Peters, where the Chief Justice spoke of titles which could "be asserted in the ordinary courts of the country against any grantee of the American Government." Recognizing the correctness of the construction given the 15th section of the Act of 1851. in Waterman vs. Smith and Teschmacher vs. Thompson, the Supreme Court of the United States, in Beard vs. Federy (3 Wall, 493), said, "The term, 'third person,' as there used, does not embrace all persons other than the United States and the claimants, but only those who hold superior titles, such as will enable them to resist successfully any action of the govern- ment in disposing of the property." The Supreme Court of California was called upon to meet the question directly, for the first time in Minturn vs. Brower (24 Cal., 645), and there held the legislation of Congress to be ineffectual to impair or destroy perfect titles for failure to present them to the commissioners for their examination and judgment thereon. This decision was followed through a period of nearly twenty-five years, when in December, 1887, the Court in a full and carefully considered opinion, in Phelan vs. Poyoreno (74 Cal., 448), reviewed the whole subject, reaching the same conclusion as in Minturn vs. Brower; and then came before the court at the same term the case of Dominguez, which was decided, as were the two cases last mentioned. These decisions were the logical sequence of the doctrines declared in many cases which came before the Supreme Court of the United States in respect to grants existing in Louisiana and Florida, at the respective dates of the treaties ceding those countries to the United States, and also necessarily resulting from the interpretation of the 15th section of the Act of 1851, as found in Waterman vs. Smith and other California cases, and in Beard vs. Federy (3 Wallace, 491), and also resulting from the provisions of the Constitution which limit Congress to the disposition of government property, and which further declares that no person shall be deprived of liberty or property without due process of law, and that private property shall not be taken for public use without just compensation. If there be titles derived from a source of paramount proprietorship, which can be interposed in successful resistance to any action of the government or its grantees, what are they in their nature and quality, unless they be perfect titles? Is a title in fee simple absolute, in common law phrase, a better title than a perfect title under the laws of Mexico, when that government was the absolute sovereign proprietor of the lands granted? There can be but one answer to this question. History of the Bench and Bar of California. 65 The title of Dominguez to the tract of land Las Virgenes was a perfect title at the date of the cession, as appeared by the record before the court in the action, and so the court, by Mr. Justice Miller, admitted it to be at that date, but gave force and effect to the legislative judgment and decree, declaring that the same became a part of the public domain, because its owner failed to submit his title thereto to the commissioners for their examination and judgment respecting it. Is not this, in effect, a confiscation of the property of Dominguez, depriving him of it without due process of law, taking it from him for the use of the government, without rendering for it a just compen- sation ? Involved in the decision of the court, holding that a perfect title must needs be presented to the commissioners to save it from forfeiture to the government, is an admission that such was a perfect title in fee simple absolute at the date of the cession, and at the time of the passage of the Act of 1851, and continued to be so until the end of the period prescribed for its presentation to the com- missioners. The examination and judgment of the commissioners could not make the title a better title than it had been and was, for that was impossible. What could they have done more than to inspect and examine the muniments of the title, which were of record, importing absolute verity? If they had proceeded farther and decreed it to be a perfect title, such decree would have been idle and inconsequential. Nothing could come of such decree to alter, change, or give greater validity to the title, than it had at the beginning of the proceeding. Nothing could be gained from a patent of the United States. Such patent could not make the title better than it had been, and was from the time it became complete and perfect under the laws of Mexico. The patent record was no better as a record than the one already existing in the archives of the government, easily accessible to all concerned. No beneficial end could possibly be attained by the presentation of such a title to the com- missioners, and their confirmation of it followed by a government patent, for the reason that the owner of such a title had already a perfect title to the land, which. was duly recorded. Between parties litigating as to which has the right to the possession of certain real property, depending upon a legal title from a source of paramount proprietorship, the party holding such title must prevail. In such a case there is a tangible result as distinguished from a result purely ideal. If it be said the Act of 185 1 contemplated and provided for a contest and litigation between the owner of land by legal title in full property, and the United States, as to which party should have and hold the land in controversy, the question arises as to the power of the United States, one of the parties, in its political capacity to create a special tribunal with authority to hear and try, upon documentary evidence, and the testimony of witnesses, and to deter- mine by decree as to the rights of the respective litigants to the land in contro- versy, by a proceeding, not in due course of law, but entirely independent of 66 History of the Bench and Bar of California. the right of a trial by a jury, a right secured by the Constitution, which pro- vides that "in all suits at common law. where the \alue in controversy exceeds twenty dollars, the right of trial by jury shall be preser\-ed."' Such an action or suit is exclusively of common law cognizance, as distinguished from the jurisdiction of courts of equity, and the jurisdiction conferred on the commis- sioners by the Act of 185 1, in regard to lands claimed by private persons by virtue of any right or title of an inchoate, imperfect, or equitable nature, deri\-ed from the Spanish or Mexican government. Tt is believed that no one can or will say the scheme devised by Congress for the trial of perfected titles /;/ rem, was. in any just sense, a trial of such title, in accordance with the "law of the land — due course of law — due process of law." The decision in the DomingTiez case is placed on two grounds. The first ground is that of governmental policy respecting the public lands. The learned Justice says: "It is clear that the main purpose of the statute was to separate and distinguish the lands which the United States owned as prop- erty * * * from the lands which belonged, either equitably or legally, to private parties, under a claim of right derived from the Spanish or Mexican governments." And he further says, "This was the purpose of the statute; and it was equally important to the object which the United States had in the passage of it, that claims under perfect grants, under the Mexican govern- ment, should be established as that imperfect claims should be established or rejected." To support this view of the purpose of the statute, several expres- sions of opinion by justices of the court are cited, two of which, the most emphatic, may be here noticed. The first is the case of United States vs. Fossat (21 Howard. 447), and the second, the case of Moore vs. Steinbach, (127. U. S. R., 81). The Fossat case in\-olved the consideration of an inchoate grant or imper- fect title, which the claimant had presented to the commissioners, and Mr. Justice Campbell, who prepared the opinion in the case, discoursed at some length as to the necessity existing for the presentation of all land claims held under perfect titles as well as those held under imperfect grants, to the board of commissioners for their examination and judgment, saying, "The effect of the inquiry and decisions of these tribunals upon the matter submitted is final and conclusive. If unfavorable to the claimant, the land shall be deemed, held and considered a part of the public domain of the United States" ; and continuing the learned Justice said, "All claims to lands withheld from the board of commissioners during the legal term for presentation, are treated as non-existent, and the land as belonging to the public domain." In Moore vs. Steinbach, Mr. Justice Field said the defendants had not accjuired a perfect title to the lands which they claimed. He then proceeded to consider the obligation which the owner of land by perfect title in full property, was under, to present his claim to the board of land commissioners History of the Bench a>td Bar of Califoniia. 67 for examination, and continuing, he said. "The ascertainment of existing claims was a matter of vital importance to the government, in the execution of its policy, respecting the public lands, and Congress might well declare that a failure to present a claim should be deemed an abandonment of it, and that the lands covered by it should be considered a part of the public domain." These expressions of opinion are entitled to respectful consideration as emanating from able and learned lawyers ; but they can hardly be esteemed judicial determinations as to the necessity of presenting a perfect title for the examination and judgment of the commissioners, for the reason that that question was not involved in, or necessary to. the decision of the cases named, as each of the parties in those actions had presented his claim to the lands in question to the board of commissioners. Mr. Justice Campbell held that all claims to land withheld from the board "are treated as non-existent and the land as belonging to the public domain." Treating a perfect title as "non-existent" must be deemed an attempted violation of a vested right. The fact of the existence of a title in fee simple to land cannot be destroyed by a sweep of the pen, nor by the obiter dictum of a learned judge. It would be well to remember that a fact cannot be destroyed. Mr. Justice Field held in the Moore case that a failure to present a claim to lands, subsisting in a perfect title, might well be declared by Congress an abandonment of the claim, and that the lands covered by the title should be considered a part of the public domain. Would not such a declaration and such a determination be of the nature of a judgment, emanating from the political branch of the government, in effect condemning the land of the owner to government use, without due process of law, and without paying him for it? How could the legislature declare and decree that the owner of land in full property should be deemed to have abandoned it. when he was in the actual and exclusive seizin and possession of it, and when it further appears that he had been in such actual seizin and possession ever since it was granted to him by the Mexican government? Tt is true the government, in the execution of its policy, looking to the separation of its own lands from those belonging to private persons, might adopt to that end such means as Congress might deem proper, provided the means were within its constitutional authority. But as already observed, the taking from the owner in fee simple his property for the accomj^lishment of this policy, without paying him for it. is unconstitutional. There exists a lawful means, a judicial proceeding, by which the end in view can be attained. If to attain such end it may be for the general welfare to take from the owner his land, let the government condemn it in a lawful way, paying for it a just compensation. This was the doctrine laid (Unvn by Mr. Justice Miller himself in the case of the Fertilizing Company vs. Hyde Park, (97 U. S. R., 659). 68 History of the Botch and Bar of California. The Constitution makes it the duty of the courts of the country to prevent the violation of constitutional rights of property by the other departments of the government, by refusing to enforce laws which provide for the violation of such rights. This duty has been exercised time and again, as the demands of justice have required. If the main purpose of the Act of Congress was to separate and distinguish the lands of the government from the lands of private owners, there could not exist any necessity for the accomplishment of such purpose in respect to lands held under perfect titles, because such lands are already separated and distinguished from the government domain. Lands held under such titles are well and exactly bounded and described by proper muniments of title, as much so as they could be by government survey or by stone walls standing upon and marking their boundaries. The exigencies of war and circumstances of extreme danger to life, arising from prevailing pestilences and famines, and the danger to life and property from destructive conflagrations and floods, and the like, may justify a resort to extreme measures for the safety and welfare of the people concerned. Such measures may result in the taking or destroying of private property without rendering for it immediate compensation, but it is maintained with confidence as a general truth that nothing short of extreme and urgent necessities, would justify the government in the execution of a policy of the kind mentioned in the Moore case, in the taking of the property of an individual for public use or for government use, without paying for it a just price. A policy so carried into execution strikes at and uproots the very foundation of property rights, rendering the man of wealth today a pauper tomorrow. Is there any one who believes that if all private land claims in California had been held under perfected titles at the date of the cession, the Act of 185 1 would have been passed ? Would there in such case have existed any reason or necessity for a commission to ascertain the location, boundaries and extent of such private lands, in order to enable the government to distinguish and know the extent and limits of its own lands? It is reasonable to suppose that, had all land claims subsisted in perfect titles. Congress would have concluded there was no necessity for such an act as that of March, 185 1, and further, that it, as the political department of the government, would have decided that it had no jurisdiction in the premises. In the Louisiana and Florida cases of private land claims, as also in Cali- fornia, as to like class of claims of an inchoate and imperfect character, there existed a necessity for their ascertainment, settlement and location. This was especially so in California, for the grants of the character here mentioned were of tracts of specified quantity within areas of undefined and generally of much larger extent, and the equitable grantee was not able to say, with any degree of exactness, where were the boundaries of his land ; and hence there existed a necessity for government action, not only to give him a title in fee History of the Bench and Bar of California. 69 simple to his land, but to give it a location by proper metes and bounds, which would separate and distinguish it from the public domain. The reason for the rule and policy of the government, in respect to inchoate and imperfect grants of land of uncertain and undefined extent and boundaries, cannot be said to apply to lands held under perfect titles, with boundaries fixed and known, as they must be, in the case of lands covered by perfect titles. It is a maxim of the law that when the reason for a rule of law ceases, the law itself must cease. In the case of a perfect title there is no reason for the application and enforcement of the policy relied on for the justification of the re([uirement to present to the commissioners claims to lands subsisting in perfect titles, for reasons already stated. Besides the foregoing answer to the policy assumed to be essential to the government, to enable it to discover where are its own lands, it is submitted that Congress had no right or authority, as the political department of the government, to interfere in any manner with vested rights of property, which did not stand in need of its aid. If Congress has such power, whence is it derived? Certainly not from the grant of power found in Section 3 of Article IV of the Constitution. The grant of power in that article is to dispose of the public domain and other property of the United States, and that only. The second ground for holding the eighth and thirteenth sections of the Act of 1 85 1 constitutional as the same affect perfect titles, seems to depend mainly on the question of inconvenience, which would result from the assertion of such titles by their owners, if allowed exemption from the provisions of those sections of the statute. The learned Justice says that, although it has been generally supposed that nearly all the private land claims in California, derived from the former governments, had been passed upon by the commis- sioners, "yet claims are now often brought forward, which have not been so passed upon by the board, and were never presented to it for consideration. And if the proposition on which the Supreme Court of California decided the case is a sound one, namely, that the board constituted under the act had no jurisdiction of, and could not by their decree affect in any manner a title which had been perfected under the laws of the Mexican government, prior to the transfer of the country to the United States, it is impossible to tell to what extent such claims of perfected titles may be presented, even in cases where the property itself had been by somebody else brought before the board and passed upon." This objection to the assertion of right and title to lands owned and held in full property, seems not to require any extended consideration. Is it too much to say it is a fallacious and impotent objection? Can there be any reason why he who owned the land at the date of the cession of the country, and who had been lawfully seized of it ever since, should not retain it. or if ousted of it, should not be allowed to recover its possession, and have the enjoyment of it under the laws of the land ? It is impossible to understand how the owner 70 History of the Bench ami Bar of California. of land by perfect title can be held to have lost his right to it because another person, without right or title, had secured to himself a confirmation, based on a false claim thereto, and a patent from the government, which had no right or title to such land. Titles of superior and paramount character are the titles mentioned in the fifteenth section of the Act of 1851, which embrace and protect the interests of third persons, who can use the same in the maintenance of their possession and enjoyment of such lands, as against the United States or its grantees. These are the titles which Chief Justice Marshall in Clark's case, and Mr. Justice Baldwin in Strother vs. Lucas, and >\Ir. Justice Catron in United States vs. AA'iggins, and Air. Justice Clifford in ]\Iaguire vs. Tyler, and Mr. Justice Field in Beard vs. Federy. and in Waterman vs. Smith and other cases in the California Supreme Court, held to be of the character that needs no sanction nor aid from the political department of the government, and which can be used in the courts of the country in successful resistance to any adverse action of the United States or its grantees respecting them. The fifteenth section of the act itself provided for the assertion of such titles ; and the rights and interests thereby secured l)y any third person, who may be in position to do so, when necessary, as expounded in \\^aterman vs. Smith, and in Beard vs. Federy — an exposition and construction that has never been questioned by any court in the land. From such construction of said section it results logically, that perfect titles of individuals are superior and paramount to any claim or claims the government or its grantees may make to lands which such titles describe and embrace. It is assumed in the opinion in the Dominguez case, that if the title was perfect, the board of commissioners and the courts to which it might be sub- mitted, would decide the claim thus presented to be valid. This assumption is not fully warranted by experience in matters even of judicial investigations. That the commissioners and the District Court might decide erroneously, -is assumed by the act itself, which provides for an appeal from their decisions, and though there can be no appeal from the court of last resort, that court cannot be said to be infallible: therefore, it would be possible for one owning land by such title, after all the labor and expense to which the government, by its legislation had driven him, to fail to satisfy the commissioners and the courts of the validity of his title, and so he would lose his land, notwithstand- ing his perfect title. The Constitution was ordained "to establish justice." and it is for men imbued with the spirit of justice, to say if it be just to require individuals holding their lands by perfected titles, to submit their claims and titles to a board of commissioners, who might decide them to be invalid. Is it just to compel the owner of land in full property, in order to save it from forfeiture, to become the ])laintiff in a proceeding in the nature of an action against the United States, in which government lawyers of learning and skill are employed bv authoritv of the act itself, to oppo.se, and if possible, break down his title? History of the Bench and Bar of California. 71 Congress may possibly enact laws in violation of common right and treaty stipulations and of the Constitution which provides for the security of vested rights. If Congress so transcends its power it becomes the duty of the courts, when the question is properly brought before them, to declare the invalidity of such laws. "Cases may occur," said the court in Strother vs. Lucas, "where the provisions of a law may be such as to call for the interposition of the courts." It is believed 1)y many able and learned lawyers, that the Dominguez case presented a palpable instance for the just exercise of judicial authority for pronouncing the eighth and thirteenth sections of the Act of 1851 invalid and void as to titles of the character of that of Dominguez to Rancho Las Vir- genes ; or perhaps more properly, by holding that inasmuch as Congress had no jurisdiction over perfect titles, the eighth and thirteenth sections of the act were not intended to include such titles and the lands held thereunder, even though the language of these sections were broad enough to embrace all claims to lands. Such a construction would relieve Congress from the imputation of any intention to transcend its powers. This would Ije within the rules of construction sanctioned by the highest courts of the land. It would avoid the strict letter of the statute in the ascertainment of the lawful intention of the legislature, Qui liacrct in litcra, hacret in corticc. There are principles lying at the foundation of the Constitution which are as unerring as the law of gravitation, and which must endure in spite of the progressive tendency to legislative usurpation of power. These principles are imbedded in the Constitution, and are conserved in the opinions and decisions of our highest court in its earlier history, which, with lawyers and jurists had become the sacred scriptures of judicial learning and just exposition of organic law. Upon these decisions the people of our country had come to believe they were secure in all that pertained to civil lil)erty — the full and free enjoyment of life, liberty and property. The conflict between the doctrines of the decisions of the court of former years, and the doctrine of the Dominguez case, is plainly conspicuous and readily to be perceived by attentive compari- son. Between these opposing doctrines, those who in\'estigate and think and reason for themseh'es must make their choice, and decide on which side they will take their stand. JOHN CURRFA'. San Francisco. Cal. DEATH PENALTY FOR LARCENY BY 7HE EDITOR I d^ "^^g c^ €^ c^ e?5 -^3 -^s m9 w? HISTORY of the BENCH and BAR of CALIFORNIA «>«??SP^'f"=??f^'??"^ DEATH PENALTY for LARCENY George Tanner was tried in Marysville in April. 1852, in the then Court of Sessions, upon an indictment regularly presented, for grand larceny, by steal- ing fifteen hundred pounds of flour, six sacks of potatoes, five kegs of syrup, two and one-half barrels of meal, one keg of powder, and one-half barrel of mackerel, the property of Low^e & Brothers, of the value of $400. While impan- eling the jury the district attorney asked one of the panel if he had any consci- entious scruples against the infliction of capital punishment. The answer was : ''I would hang a man found guilty of murder, but I would not hang a man for stealing." The district attorney challenged the proposed juror, the court allowed it, the man was "excused," and an exception to the ruling of the court was taken by the prisoner's counsel. The jury being formed, the case was tried, and a verdict was returned, — "Guilty of grand larceny, punishable with death." The prisoner w^as sentenced to be hanged. He appealed to the Dis- trict Court, which affirmed the judgment, and a further appeal was had to the Supreme Court. The latter tribunal was then composed of Chief Justice Hugh C. Murray, and Associate Justices Alexander Wells and Alexander Anderson. The case of Tanner was taken before them while they were hold- ing the .April term, A. D., ICS52, at San Francisco, under an act of the legisla- ture authorizing it so to do. The cause was argued before the Supreme Court on behalf of the prisoner by no less a light than General William Walker, the "grey-eyed man of destiny," who became famous alike in law, medicine and wild adventure, and whose pursuit of the vision of empire ended in his violent death. The attorney-general, S. C. Hastings, represented the people. The Supreme Court affirmed the judgment of death. A ])etition for a rehearing was filed, and an order was made commanding the sheriff' of Yuba county to stay the execution of the sentence until the 23d day of July, 1852, in order that an application for rehearing might be heard by the court. The application was heard by Justices Wells and Anderson, and was overruled July 16, 1852. It was ordered that Tanner be executed on the 23d day of July in 76 History of the Bench and Bar of California. the manner prescribed by the original sentence, and he was executed accord- ingly. At that day our law provided that any person found guilty of grand larceny should be punished by imprisonment in the State prison for a term of not less than one, nor more than ten years, or by death, in the discretion of the jury. In referring to this enactment, the Supreme Court said, in the case of Tanner : "We regret that our legislature have considered it necessary to thus retro- grade, and in the face of the wisdom and experience of the present day, resort to a punishment for less crimes than murder which is alike disgusting and abhorrent to the common sense of every enlightened people." But the question of the constitutionality of the law, or its invalidity for any reason, seems not to have been discussed before, or considered by the Supreme Court. The arguments of counsel were not preserved or written, but the Supreme Court opinion (by Murray), is found in the second volume of the reports of that court, at page 257. The appeal turned on the question whether the Court of Sessions erred in excluding from the jury the man who declared he would not hang another for stealing. It was held that the man, William Jackson, of Marysville, was properly excluded from the jury; the validity of the act, under which Tanner was hanged, was not attacked. It is curious to note that while the old criminal law referred to did not permit a man to be imprisoned for grand larceny for a longer term than ten years, it yet authorized the jury to decree his death on the scaffold. The jump was a long one — from ten years' imprisonment to death ! Mr. George Congdon, of San Francisco, has informed the editor of this History that he was present in a concourse of three thousand people in the outskirts of Stockton, in the year 1852, and saw three men hanged at the same time for the crime of grand larceny (stealing cattle), whereof they had been regularly indicted and convicted by a jury in a legal court of justice. The sheriff of San Joaquin county, who officiated on the occasion, was the late Colonel R. P. Ashe, who left a large family and a valuable estate, and who is well remembered all over California. He was the father of Hon. R. Porter Ashe, of our own day. The law of this State which first prescribed punishment for robbery and grand larceny, was passed, of course, at the first session of the legislature, in 1850. The penalty was alike for both offenses, namely, imprisonment for from one to ten years. It was at the second session, 1851, the draconian pro- vision, authorizing juries in their discretion, to impose the death penalty for both robbery and grand larceny was passed, and approved by Governor John McDougal. This law remained in effect full five years. On April 19, 1856, it was amended, and at the same time a distinction made between the two crimes, so that robbery was punished by imprisonment for not less than one year, which might be extended to life, while the penalty for grand larceny was made from one to fourteen years' impri.sonment, the court in all instances, History of the Bench and Bar of California. 77 and not the jury, being the sole arbiter as to the length of the term. This law of 1856 was enacted by our only Know-Nothing legislature, and approved by J. Neely Johnson, our only Know-Nothing Governor. The degree of pen- alty for these crimes has fluctuated, but at present, it is for robbery, imprison- ment from one year to life; for grand larceny, imprisonment from one to ten years, so that the present penalty for the latter crime is just the same as was prescribed by the original statute of the State. Many cases similar to the above might be given. Three men were hanged in Sacramento in 185 1 for a not very aggravated case of highway robbery. We had occasion many years ago to make allusion to these early trials, and thereupon a well-known editor of the time made these observations : No doubt at this distance the infliction of capital punishment for felonies other than murder must seem to have been draconian to an extent almost inconceivable. But at the time there could hardly be said to be organized society in California. The sternest measures were necessary to keep the vicious in subjection. The condition of things was as primitive as when the death penalty was prescribed in England for rob- bery. But when society in California became strong enough to deal with criminals of all grades and had jails to keep them in, our code became more mild — perhaps in some cases now, too mild. THE EDITOR. THE RECOVERY OF THE PIOUS FUND HON. JOHN 7. "DOYLE c^^ttuaa^ J <'(y(:^u^ ^a^fer^— e?9 (^ (^ (& tSa & & efe i^ . W^oryb t^t^c^c^c:^ cl^c^bE^dSbc^ HISTORY of the BENCH and BAR of CALIFORNIA eg. ejp 35) i^ eji go eji o|i ejp e^ IRRIGATION LAWS and DECISIONS of CALIFORNL\ In treating of the irrigation laws of the State, three classes of water con- sumers must be considered, viz: (i) riparian owners; (2) individual or pri- vate appropriators, and (3) appropriators of water for sale, rental or distri- bution to the public. These three classes of consumers are governed, in some respects, by entirely different principles of right, and by different laws. There- fore, in order to arrive at the rights of each and the laws by which they must be governed, they must be treated separately. But, before taking up the questions about to be considered, specifically, a few general observations upon the condition and effect of our irrigation laws may not be out of place. And, in the beginning, it may be said that the laws of this State relating to this most important subject, are exceedingly crude and unsatisfactory. In the early history of the State, water was diverted and used mainly for mining purposes. The extent to which the waters of the State would be called upon for the purpose of irrigation for agricultural and horti- cultural purposes, particularly in the southern part of the State, was not thought of in the earlier stages of legislation regulating the use of water. W hen the importance to the State of the conservation and proper use of the waters of its running streams came to be realized, and it was feared that they might be monopolized by corporations for purposes of gain, the law-making power unwisely enacted such legislation as to discourage the investment of capital in the diversion, storage and distribution of water, by which the State, and par- ticularly the southern part of it. where water for irrigation purposes must be had, if at all, by the expenditure of large sums of money in storage reservoirs, in wells, underground works and distributing systems, has been seriously dam- aged and its growth retarded beyond the belief of the unthinking, whose efforts have been directed. ap])arcnt]y. to the sui)])rcssi()n of corporations organized to develo]) and sn])])l\' walcr to the puMic. 'I'lic pro\ision of our constitution, which places the fixing of water rates in the hands of the consumers them- selves, or tlicir rcprescntatix es. instead of some disinterested court or body, 102 History of ihe Bench and Bar of Calif oviiia. is a striking example of this unwise, not to say vicious, legislation. And the narrow and illil)eral construction placed upon the constitution, and laws enacted in pursuance of its provisions by courts and judges, has aggravated tlie unjust and evil effects of this class of legislation. The future growth and prosperity of the State must depend, in great measure, upon the encouragement, by just and liberal laws, judicially con- strued in the same spirit of right and justice, of the investment of capital in works for the diversion, storage and distribution of subterranean waters and the storm waters of the winter months, for use during the irrigation season, and for the protection of capital already invested in such and other enterprises for the increase and appropriation to beneficial uses of the water to be had l)y the legitimate expenditure of capital. By this it is not meant that the vState should not maintain its control over the waters of its streams, or reg- ulate, by just and wholesome laws, the appropriation and distribution of such waters, with a view to pre\'enting the same being taken up and monopolized for private gain and profit by the exaction of unreasonable rates for water used. But it is a reproach to the State that it should say, by its constitution, to every individual or corporation that has invested, or proposes to invest, money in an enterprise fraught with such benefit to the community to be supplied with water, and indirectly to the whole State, "You can charge no more for the water you supply than those to whom you supply it shall deter- mine to be just, on penalty of forfeiture of your plant.'' This is practically the law of this State, as will appear farther along, as it relates to the appropriation of water for sale, rental'or distribution. As a result of this pernicious course of legislation, the investment of capital for the development and increase of the water supply of the State has almost entirely ceased, and will not be renewed under existing laws. As to the appropriation of water for private use, the laws of the State are not subject to the same criticism. They are nothing more than useless, as we shall see directly; consequently but little harm can come from them. We need a new body of laws for the regulation of the appropriation, for private use. of the waters of the streams of the State, that will protect all interests as fully as human laws may compass that object, and conserve the supply and insure its distribution to the best advantage, and to the largest area of land. The writer has been asked to supply a history of the irrigation laws of .^ the State, and the decisions of the courts thereon, together with his own w views as to the ]jroper construction of such laws, and their legal effect, and as | to the decisions affecting the same. This is a perilous undertaking. The great diversity of opinion on the part of judges and lawyers and the confusion growing out of the many conflicting and wholly irreconcilable decisions relating to the sul)ject. renders it impossible for any one to say what the present construction of some of these laws is, and none but a prophet can foretell what conclusions will finallv be reached by the courts on some of the most miportant questions mvolved. | History of the Bench and Bar of California. 103 But, fortunately, I am not expected to determine what others may think, or beheve, respecting the irrigation laws of the State, but to express my own views and convictions as to the effect of such laws and what has been said or decided regarding them, judicially or otherwise. This will l)e done with a full appreciation of the fact that whatever may be said on many of the im- portant questions involved will meet with the opposition of many able lawyers with whom I have come in contact in litigation over these same questions, and for whose opinions I have the most profound respect. Again, the views here expressed will not accord, in some respects, with the decisions of some of the highest courts of the country. But while such decisions are entitled to respectful consideration, they are not binding upon me on this occasion, and I disagree with them with less trepidation because so many others, judges, courts and lawyers, have done the same. Therefore, I shall not hesitate to express my own convictions, giving due prominence and consideration, at the same time, to the expressed views of others, whether agreeing with my own or not. OF THE LAWS AFFECTING THE RIGHTS OF RIPARIAN OWNERS. We have no statutory laws establishing or defining the nature or extent of the rights of riparian owners. Their rights are, of course, modified, or otherwise affected, to some extent, by statutory provisions relating to the appropriation of water, but such statutes are not directed at them or their rights. However, controversies may and do arise, not only between riparian owners themselves, claiming water from the same stream, but between them and appropriators of water. The effect of existing statutes providing for and regulating the appropriation of water, will be considered when we come to that branch of the subject. In this connection, they will be taken into account only indirectly as they affect the conflicting rights of the riparian owners. The question of the extent of the rights of riparian owners in and to the waters of a stream flowing past their lands, for purposes of irrigation, has been before the courts of this State many times, and with varying results. The leading case on the subject is Lux. v. Haggin. 69 Cal. 255. There the effort was made to define and measure the rights of a riparian owner in this State by the common law doctrine on the subject. The contest was a pro- longed and bitter one. The court was divided on the question whether the common law must be applied, in this State, or whether it shouhf be modified by the existing natural conditions prevailing, on the ground that the common law doctrine, if maintained, would result in ruinous conse(|uencos. and whether the common law doctrine was modified by our code provisions providing for the appropriation of water. The opinions delivered in this case are of g^reat interest and exhibit great learning, industry and research on the part of the 104 History of the Bench and Bar of California. justices delivering them. The majority opinion sustained the contention that the common law must prevail, and that the court must not be swerved from its enforcement by the plea of differing conditions and injurious conseciuences. But the court, while not overuling this case, has, in numerous subsequent cases, departed from it, and the court, in that and later cases, has done precisely what it was then held could not be done, allowed the necessity for some dif- ferent rule of right, as between the riparian owners themselves and between them and the appropriator, to prevail over the law as it was then declared to be. But. strangely enough, while the main question in that case was whether the common law right of a riparian owner should be recognized as existing at all in this State, or not. and the right was upheld, manifestly, only because the majority of the court felt constrained to that conclusion by strict rules of law, that and later cases, or some of them, have extended the right of a ripa- rian owner far beyond that vested in him at common law, and has thus, in a measure, if not entirely. sul)verted and destroyed the common law riparian right. The right of a riparian owner at common law^ is to the use of the water as it naturally flows, in quality, and without diminution in quantity, except as it may be diminished by the reasonable use by other riparian owners, for domestic, agricultural, and manufacturing purposes. And as this right is tlie same in every owner of land bordering on the stream, there can be no such diversion or use by one owner as will materially diminish the quantity or deteriorate the quality of water flowing past any other riparian owner on the stream. Or, as said in Angell on Watercourses, Section 93 : "A water course begins ex jure naturae, having taken a covirse, naturally, cannot be diverted. Aqua currit et debet currere, ut currere solebat, is also the language of the ancient common law. That is, the water runs naturally, and should be permitted thus to run, so that all through whose land it runs may enjoy the privilege of using it." Again it is said by the same author. Section 93a : "The law has been supposed to be well settled, and in ni}' opinion is nowhere more clearly stated than by Lord Kingsdown, in Miner vs. Gilmour, 12 Moore P. C, 156. He says, 'By the general law applicable to running streams, every riparian proprietor has a right to what may be called the ordinary use of water flowing past his land ; for instance, to the reasonable use of the water for domestic purposes, and for his cattle, and this without regard to the effect which such use may have in case of a deficiency upon proprietors lower down the stream. But. further, he has a right to the use of it for any purpose, or what may be deemed the extraordinary use of it, provided he docs not thereby interfere with the rights of other proprietors, either above or below hint. Sub- ject to this condition, he may dam up a stream for the purposes of a mill, or divert the water for the purpose of irrigation. But he has no right to intercept the regular flozv of the stream, if he thereby interferes i^'ith the lazvful use of the zvater by other proprietors, and inflicts upon tlicin a sensible injury.' The use in all the above cases must be a reasonable one." Many decided cases might be cited to the same effect, but it is unnecessary, as the rule, thus limited, is firmly established and well understood. History of the Bench and Bar of California. 105 But in the very case in which this doctrine is upheld and enforced as ap- plicable to the conditions in this State, it is held that a riparian owner has the right, as such, to a reasonable use of the water for purposes of irrigation. Lux V. Haggin, 69 Cal. 255, 394. And this doctrine has been adhered to in some of the later cases : Harris v. Harrison, 93 Cal. 676; Wiggins V. Muscupiabe L. & W. Co., 113 Cal. 182, 190; Smith V. Corbit, 116 Cal., 587; Heilbron v. Land & Water Co., 80 Cal. 189. The doctrine thus modified and the reasons for it are thus stated in Harris V. Harrison, supra (p. 680) : "According to the common-law doctrine of riparian ownership as generally declared in England, and in most of the American States, upon the facts in the case at bar, the plaintiffs would be entitled to have the waters of Harrison canyon continue to flow to and upon their land, as they were naturally accus- tomed to flow, without any substantial deterioration in quality or diminution in quantity. But in some of the Western and Southwestern States and terri- tories, where the year is divided into one wet and one dry season, and irrigation is necessary to successful cultivation of the soil, the doctrine of riparian owner- ship has by judicial decision been modified or rather enlarged, so as to include the reasonable use of natural water for irrigating the riparian land, although such use may appreciably diminish the flow down to the lower riparian pro- prietor. And this must be taken to be the established rule in California, at least, where irrigation is thus necessary. (Lux vs. Haggin, 69 Cal., 394). Of course, there will be great difficulty in many cases to determine what is such reasonable use ; and 'what is such reasonable use is a question of fact, and depends upon the circumstances appearing in each particular case.' (Lux vs. Haggin, 69 Cal., 394.) The larger the number of riparian proprietors whose rights are involved, the greater will be the difficulty of adjustment. In such a case, the length of the stream, the volume of water in it, the extent of each ownership along the banks, the character of the soil owned by each contestant, the area sought to be irrigated by each, — all these, and many other considera- tions, must enter into the solution of the problem; but one principle is surely established, namely, that no proprietor can absorb all the water of the stream so as to allow none to flow down to his neighbor." Under this declaration of the rights of riparian owners, it is presumed that such owners must be regarded as equally entitled to share in the waters of the stream and in equal proportions, for purposes of irrigation. Tt cer- tainly cannot be that there can be any preferred right to the use of any given quantity of water as the result of a prior diversion and use of it. And so the Supreme Court has treated their rights by holding that the court may decree division of the water between them. Wiggins V. Muscupiabe Water Co.. i 13 Cal. 182. But it is entirely inconsistent with and antagonistic to the conclusion reached in the first case cited, that the common law riparian right prevails in this State, because, whenever a riparian owner " diverts" any part of the natural flow of the stream, which he must do in order to use it for puri)Oses of irrigation, he necessarily violates the common law right of every other 106 History of the Bench and Bar of California. owner along the stream to have the same flow, naturally, and without dimin- ution. In Lux V. llaggin, the common law riparian right is clearly enough defined and its extent and limitations are emphasized by quotations from law- writers on the subject as follows: — (Pp. 390. 391.) I "As to the nature of the right of the riparian owner in the water, by all the modern as well as ancient authorities, the right in the water is usufnic- titarv. and consists not so much in the fluid itself as in its uses, including the benefits derived from its momentum or impetus. (Angell on Watercourses, Sec. 94. and notes.) "But the right to a watercourse begins c.v jure naturae, and having taken a certain course naturally, it cannot be diverted to the deprivation of the rights of the riparian owners below. So say all the common-law text-books and the decisions. (Angell on Watercourses, Sec. 93.) Aqua eurrit, et debet currere, ut currere solebat, is the language of the ancient common law. (Angell on Watercourses, Sec. 93; Shury vs. Pigott, Bulst., 399; Countess of Rutland vs. Bowler, Palmer, 390-) " 'As a general proposition, every riparian proprietor has a natural and equal right to the use of the water in the stream adjacent to his land, without diminution or alteration.' (Washburn on Easements and Servitudes, 319.) " 'Riparian proprietors are entitled, in the absence of grant, license or prescription limiting their rights, to have the stream which washes their lands flow as is wont by nature, without material diminution or alteration.' (Gould on Waters, Sec. 204.) " 'Each riparian proprietor has a right to the natural flow of the water- course undiminished except by its reasonable consumption by upper proprietors.' ' (Angell on Watercourses, c. 4, passim.) "The right to the flow of the water is inseparably annexed to the soil, and passes with it, not as an easement or appurtenant, but as a parcel. Use does not create, and disuse cannot destroy or suspend it. Each person through whose land a watercourse flows has (in common with those in like situation) an equal right to the benefit of it as it passes through his land, for all useful purposes to which it may be applied ; and no proprietor of land on the same watercourse has a right unreasonably to divert it from flowing into his premises, or to obstruct it in passing from them, or to corrupt or destroy it." (Chief Justice Shaw, in Johnson vs. Jordan, 2 Met., 239.)" This statement of the law cannot be reconciled with the other position taken by the court, in the same case, that a riparian owner may make a reasonable use of the water for irrigating his land. The distinction between a riparian right to the use of the water and the right of an appropriator is here wholly overlooked or disregarded. The right of the one is to use the water as it passes without diverting, or, if diverting it, for purposes of manufacture, for example, returning it to the natural stream again ; and, in either case, without any material diminution in the quantity of the natural flow. The right of the other is to divert or take from the natural flow of the stream all or a part of the water there fl(^wing, without obligation to return it to its natural channel again. So, when the court held that a riparian owner might, by virtue of his right as such, use the waters of the stream for irrigation pur- poses, it clothed him also with the rights of an appropriator. And by so doing, it brought the rights of riparian owners on a stream in direct conflict with each other 1)ecause the dixersion of any water from the stream for the puri)ose of History of the Bench and Bar of California. 107 irrigation, or the appropriation of it, for that is what it is, essentially, and as matter of law, must of necessity be an interference with and diminution of the right of every other riparian owner on the stream for the reason that it does divert a part of the waters of the stream, never to be returned, and there- fore diminishes the quantity of water naturally flowing therein. If the court had held that so long as there was water in the stream sufficient for use by all riparian owners for irrigation, as well as other purposes, the use of water for purposes of irrigation by one w^ould not amount to an actionable injury to another such owner, the position would have been unassailable, not because the court was right in respect of its views as to the extent of the riparian right, but because, under the conditions prevailing in this State, the use of surplus w^ater could not be prevented by a riparian owner when such water was not necessary to his own use for like purposes. But, this conceded, the doctrine of the decision as to riparian rights loses all its force as in justice it should. However this may be, the most important question disputed and decided in the case referred to, viz : whether by our statutes providing for the appro- priation of water the rights of riparian owners were modified or taken away, is yet to be noticed. It must be conceded that the right of appropriation is inconsistent with and antagonistic to riparian rights. The two cannot exist together, and partici- pate in the benefits of the use of the waters of the same stream. This is necessarily so, because whenever an appropriator diverts any part of a stream from the natural channel and conducts and uses it upon his land, he therebv diminishes the quantity of water flowing naturally past the lands of the ripar- ian owners below the point of diversion. Therefore, the exercise of the right of an appropriator infringes upon and takes from the right of the riparian owner. The law-making powers, state and national, in providing for the appropriation of water, must have done so wnth knowledge of the fact that the riparian owner was, at common law, entitled to have the whole of the waters of the stream flow past his lands. And, when the legislature of this State and the Congress of the United States authorized and provided for the appropriation of the stream, or any part thereof, they abrogated the common law right of the riparian owner to the extent such appropriation was permitted. In our legislation there is no limitation of the amount of water that may be taken from a stream by appropriation. The right extends to the entire flow of the stream. This being so, it must be manifest that the legislature intended to substitute for the riparian right which was limited to lands bordering on the streams in the State, and confined to such use of their waters as W(~»uld make them of but little benefit, even to such owners, the right of appro- priation, which gives the right to the use of the entire flow of every stream in the State for all legitimate and useful purposes, to be divided equitablv to jjroperty owners making such appropriation, no one appropriator to take 108 History of the Bench and Bar of California. from the stream more than is reasonably necessary for the purposes for which lie makes the appropriation. And, not only is it manifest that this was the intention of the legislation referred to, because the two rights are directly conflicting and the establishment of one is the abrogation of the other, but such legislation was obviously for the best interests of the State. This view was very clearly and forcibly put by Mr. Justice Ross in his dissenting opinion in Lux V. Haggin. He says (p. 450) : "The common-law doctrine of riparian rights being wholly inconsistent with and antagonistic to that of appropriation, it necessarily follows that when the federal and State governments assented to, recognized, and confirmed, with respect to the waters upon the public lands, the doctrine of appropriation, they in effect declared that that of riparian rights did not apply. The doctrine of appropriation thus established was not a temporary thing, to exist only until some one should obtain a certificate or patent for forty acres or some other subdivision of the public land bordering on the river or other stream of water. i^r It was, as has been said, born of the necessities of the country and its people, ;' was the growth of years, permanent in its character, and fixed the status of . water rights with respect to public lands. No valid reason exists why the gov- J; ernment, which owned both the land and the water, could not do this. It "t thus became, in my judgment, as much a part of the law of the land as if it t had been written in terms in the statute-books, and in connection with which | all grants of public land from either government should be read. In the light f of the history of the State, and of the legislation and decisions with respect to the subject in question, is it possible that either government, state or national, ever contemplated that a conveyance of forty acres of land at the lower end of a stream that flows for miles through public lands should put an end to subse- quent appropriation of the waters of the stream upon the public lands above, and entitle the grantee of the forty acres to the undiminished flow of the water in its natural channel from its source to its mouth? It seems to me entirely clear that nothing of the kind was ever intended or contemplated. Of course, the doctrine of appropriation, as contradistinguished from that of riparian rights, was not intended to, and indeed could not, afifect the rights of those persons holding under grants from the Spanish or Mexican governments : first, because the doctrine is expressly limited to the waters upon what are known as public lands; and secondly, because the rights of such grantees are protected by the treaty with Mexico and the good faith of the government. "It is the rights of such riparian proprietors as those that are unaffected by the doctrine of appropriation, and those are the riparian rights that are excepted from the operations of the provisions of the Civil Code in relation to 'water rights' by section 1422 of that code, which reads : 'The rights of riparian proprietors are not affected by the provisions of this title.' That code, as well as the other codes of California, went into effect the first day of January, 1873. The appellants contend, and the prevailing opinion holds, that by the section of the Civil Code just quoted, the legislature of the State declared that the common-law doctrine of riparian rights should apply to all the streams of the State. It seems very clear to me that this is not so, for many reasons. Leaving out of consideration the question whether it lay in the power of the State to nullify the doctrine of appropriation established by the United States with respect to the waters flowing over their lands, — estab- lished, too, in pursuance of the policy the State itself had previously adopted, and for the advancement of the interests of the people of the State, I find noth- ing in the Civil Code, or in any of the other codes, to indicate any intention on the part of the legislature of the State to return to the doctrine of riparian rights with respect to the waters upon the public lands. On the contrary, the History of the Bench and Bar of California. 109 code enacts in statutory form, in language as clear as language can be made, the theretofore prevailing law of appropriation. Title 8 of the Civil Code is headed 'Water Rights.' The first section of that title — section 1410 of the code — declares : 'The right to the use of running water, flowing in a river or stream, or down a canyon or ravine, may be acquired by appropriation.' "Can anything be clearer? By the common law, the water flowing in a river or stream, or down a canyon or ravine, could not be acquired by appro- priation, and must continue to flow in its natural channel undiminished in quantity and unaffected in quality. Could there be any clearer declaration of the fact that the common-law doctrine of riparian rights should not apply to the streams of this State than is found in this declaration of the statute that the waters of such streams may be acquired by appropriation?" This paper cannot be extended by any attempt to review the authorities bearing on this important question, nor is it necessary. They were fully considered in Luz v. Haggin, up to that time, and there has been practically no change in the attitude of the Supreme Court on the subject, except as the Court has given way in some cases to the absolute necessity of modifying the strict rule of the common law as to riparian rights without overruling Lux V. Haggin, or establishing any new rule of law as between riparian owners and appropriators. But Section 1422 of the Civil Code should not be overlooked. It provides in terms : "The rights of riparian proprietors are not affected by the provisions of this title." To give full force and effect to the language of this section of the Code as applying to common law riparian rights, would be to nullify entirely every other provision of the title of the code relating to and authorizing the appro- priation of water, of which it is a part, because there could by no possibility be an appropriation of any part of a stream of water without affecting such ripa- rian rights. Probably the only construction that can reasonably and properly be given to this section, in connection with other provisions authorizing and regu- lating the appropriation of water, is the one given to it by Justice Ross in his dissenting opinion above quoted from, viz : that the reservation of riparian rights from the effect of the provision for the appropriation of water must be confined to certain riparian rights of those persons holding under grants from the Spanish or Mexican governments, "because the doctrine is expressly limited to the waters upon what are known as public lands ; and secondly, because the rights of such grantees are protected by the treaty with Mexico and the good faith of the government." Such a construction will give effect to the section referred to and preserve the right of appropriation given by other sections of the title. This section was repealed in 1887, reserving vested rights. ( v^tatutes 1887. p. T14. ) But as practically all riparian lands had passed into jirivate ownership before its repeal, this action is of but little consequence. Other of the .semi-arid States have taken quite a different view of this (|uestion of riparian rights. It may he of interest, in this connection, to note 110 History of the Bench and Bar of California. the position taken by law-makers and courts of other States respecting this important question. The case of Stowel v. Johnson, 26 Pac. Rep. 290. is an interesting one. In that case, the Supreme Court of Utah said : "Riparian rights have never been recognized in this territorj^ or in any State or territory where irrigation is necessary ; for the appropriation of water for the purpose of irrigation is entirely and unavoidably in conflict with the common-law doctrine of riparian proprietorship. If that had been recognized and applied in this territory, it would still be a desert ; for a man owning ten acres of land or more, near its mouth, could prevent the settlement of al) the land above him. For at common law the riparian proprietor is entitled to have the water flow in quantity and quality past his land as it was wont to do when he acquired title thereto, and this right is utterly irreconcilable with the use of water for irrigation. The legislature of this territory has always ignored this claim of riparian proprietors, and the practice and usages of the inhabitants have never considered it applicable, and have never regarded it." See Kinney on Irrigation, Sees. 272, 273, 412, 424, 442, 457, 467, 477, 494, 508, 517, 547, 573; Reno Smelting Co. v. Stevenson, 21 Pac. Rep., 317; Atchison v. Peterson, 20 Wall., 507. One of the states has made the common law doctrine of riparian rights a part of its organic law. But in most of them, the law-making power has left the subject severely alone, so far as any direct legislation on the subject is con- cerned, but the courts must deal with it without statutory aid or direction. But as this paper is to deal only with the irrigation laws and decisions of California, J it would be out of place to go extensively into the laws and decisions of other States. They will be referred to, therefore, only in a brief way, and mainly | for purposes of illustration, and with a view of ascertaining the law as it is ^ in this State, together with any suggestions that may be made as to desirable changes and modifications of our own laws. As the law of this State stands today, the common law of riparian rights is in force. But those rights are so entirely opposed to the best interests of the State that they are being but little regarded in the actual distribution and use of water, and therefore the conclusion of the Supreme Court that they must be respected, as existing rights, in this State, has not been as harmful as was at first anticipated. It is believed that one of the strongest reasons for this is that the owners of riparian rights have found that in order to make their rights of any value, for purposes of irrigation, they must become appropriators of the water. And the Supreme Court has practically nullified the common law right to water by recognizing and making part of it the right of appropriation for irrigation. The practical effect of it really is to give the owner on the stream a preferred right to appropriate so much of its waters as he may reasonably need for the irrigation of his riparian lands. Harris v. Harrison, 93 Cal. 676. And while the Court has enlarged the right of the riparian owner, by allowing the diversion and use of the waters of the stream for irrigation, it has, on the other hand, limited his right by holding that he cannot complain History of the Bench and Bar of California. Ill of an appropriation of a part of the stream above him, when the water diverted would not be used by him. Modoc L. & L. S. Co. v. Booth, 102 Cal. 151, 156. But his injury by an unlawful diversion cannot be held to be inconsiderable because it is incapable of ascertainment or cannot be measured in damages. Heilbron v. Canal Co., 75 Cal. 426. This is, of course, an infringement upon the common law riparian right of the land owner, which entitled him to the flow of the entire stream undi- minished in (juantity. Under the common law doctrine, the question whether he could use the water in no way affected or limited his right. It was simply a giving way by the Supreme Court to the necessity, growing out of the pre- vailing conditions in this State, to curtail the common law right of the riparian owner in order to conserve the waters of the State and allow its more extended use. But the very same thing that would justify the court in enacting and en- forcing this limitation of the common law right would have justified it equally in holding, in the first instance, that the common law right was not applicable to the conditions prevailing in this State, and that the common law respecting it was never in force here. The right of the riparian owner, as thus expanded and limited to suit the exigencies of the situation, by the Supreme Court, is, according to the decided cases in this State, the subject of sale and transfer by him, and may be lost by grant, condemnation or prescription. Gould V. Stafford, 91 Cal. 146; Alta Land &c Co. v. Hancock, 85 Cal. 219; Sprague v. Heard, 90 Cal. 221. But this, again, is wholly inconsistent with the common law right which is a part of the land to which it is annexed. Of course, he could grant or con- vey his right with the land of zuJiich it is a part, but not otherwise, because when severed from the land it is no longer a riparian right, but that right is wholly destroyed. Therefore, it is certainly an error to say that a riparian right may be conveyed separate from the land. The party to whom the con- veyance is made may obtain the right to the use of the water, but it is no longer a riparian right. But "use cannot create and disuse cannot destroy or suspend it." Lux V. Haggin, 69 Cal. 391 ; Stanford v. Felt, 71 Cal. 249. And the lease for a definite term of the right of such owner to the use of the water does not estop him from asserting his riparian right after the cx])iration of such lease. Swift v. Goodrich. 70 Cal. 103. The right of an a])pr()])riator acf|uircd l)ctoro a riparian (^wncr secures liis title from the United States has, as against sucli owner, a |M'ior right to 112 History of the Bench and Bar of California. the water appropriated by him and reasonably necessary for the purposes for which it has been appropriated. Osgood V. Eldorado Water and Deep Gravel Mining Co., 56 Cal. 571 ; Faulkner v. Rondoni, 104 Cal. 140; Ramelli v. Irish, 96 Cal. 214. / And it is not necessary that the appropriation shall be made by a compliance | with the Code provisions regulating the same, but an actual diversion and use of the water for a beneficial purpose is just as effective to the extent of such ! diversion and use as if the statute has been followed. A\'ells V. Mantes, 99 Cal. 583 ; De Necochea v. Curtis, 80 Cal., 397. ' The rights of riparian owners will be further touched upon in considering : the right of appropriators now to be taken up. While it has seemed necessary to treat of each of these rights separately, it is desired to avoid mere repetition as far as possible. OF THE RIGHTS OF THE APPROPRIATOR OF WATER FOR PRIVATE USE. This branch of the subject has been anticipated somewhat in what has been said in discussing the questions relating to riparian rights. But it calls for a more specific consideration. In treating of this subject, it is important to inquire : 1. WHiat water is the subject of appropriation; 2. For what purposes it may be appropriated ; 3. Where it may be appropriated ; 4. How it may be appropriated ; 5. The effect of the appropriation ; ^ 6. How the right acquired by appropriation may be lost. JVhat zi'afer may be appropriated. By our code the right of appropriation is confined to "running water flowing in a river or stream or down a canyon or ravine." f Civil Code, Section 1410. This would undoubtedly include any and all water courses in the State. But what constitutes a water course or "running" water is not always easy | to determine. Where water connected with or augmenting the flow of a stream ceases to be running water, within the meaning of the appropriation laws, and must be classed as "percolating" water, is not always easy of solu- tion. And this is important, because percolating water is not the subject of appropriation, but is a part of the body of the soil in which it is found, a- and may be taken out by the owner of the land, no matter how injurious such action on his part may be to an adjoining land owner. Gould v. Eaton, iii Cal. 639; Hanson v. McCue. 42 Cal. 303; History of the Bench and Bar of California. 113 Southern Pacific R. R. Co. v. Dufour, 95 Cal. 615; Vineland Irr. Dist. v. Aziisa Irr. Co., 126 Cal., 486. But running water, as contradistinguished from water percolating through the soil, may be appropriated, subject, of course, to the rights of riparian owners and prior appropriators. It is, perhaps, more than ordinarily difficult to determine, in this State, whether water found underground is percolating or running water, on account of the natural conditions that prevail here. Along the course and at the mouth of almost every canyon or ravine in the State will be found valleys com- posed, in large part, of gravel and boulders through which water can pass with more or less freedom ; and the beds of the streams of the State are usually composed of the same material of varying depths, the bed rock rising and fall- ing, and in the valleys through which it passes spreading out to varying widths, thus forming successive reservoirs along the course of the streams, of all sizes and depths, with one large reservoir in the valley below. Where these natural conditions prevail, the running stream undoubtedly stores these natural reservoirs with water, year after year, aided, in many cases, by springs and other sources of supply, and the subterranean w^aters move on to the sea with the surface flow above, but on account of the obstructions in its course, while it is moving water, it moves more or less slowly, depending upon the nature of the deposit through which it passes, whether coarse or fine sand, gravel or boulders. This subterranean body of water is connected with the surface flow and supports and maintains it, thus augmenting the amount of water that may be derived for irrigation by the appropriation of the surface flow. This leads to the inquiry that has received the attention of the courts : Is this subterranean flow a part of the stream, or, with the surface flow above it, the stream ; or, to state it differently : Is it "running water'' within the meaning of the code. If it is, it may be appropriated ; otherwise, not. As to what is necessary to constitute a watercourse, Mr. Angell in his work on Watercourses, Sec. 4, says : "A watercourse consists of bed, banks, and zvatcr; yet the water need not flow continually; and there are many watercourses which are sometimes dry. There is, however, a distinction to be taken in law between a regular flowing stream of water, which at certain seasons is dried up, and those occa- sional bursts of water, which, in times of freshet, or melting of ice and snow, descend from the hills and inundate the country. To maintain the right to a watercourse or brook, it must be made to appear that the water usually flows in a certain direction, and by a regular channel, with banks and sides. It need not be shown to flow continually, as stated above, and it may at times be dry; but it must have a well-defined and substantial existence. A mere right of drainage over the general surface of land is very different from the right to the flow of a stream or brook across the premises of another. 'It is not essen- tial to a watercourse that the banks should be absolutely unchangeable, the flow constant, the size uniform, or the waters entirely unmixed with earth, or flow- ing with any fixed velocity; but tin- law does not and cannot fix the limits of variation in these particulars. ' " 114 History of the Bench and Bar of California. And the decided cases in this and other States agree, substantially, with this definition or description of a watercourse. Gould V. Eaton, m Cal. 639; Hoyt V. City of Hudson, 27, Wis. 656 ; Earl V. DeHart, 12 N. J. Eq. 280; McClure v. City of Red Wing, 28 Minn. 186; Gibbs V. Williams, 25 Kan. 214; Weis V. City of Madison, 75 Ind. 241 ; Pyle V. Richards, 17 Neb. 180; Eulrich V. Richter, 37, Wis. 226; Luther v. \\'annisimmet Co., 9 Cush. 171 ; Simmons v. Winters, 27 Pac. Rep. 7 ; Barnes v. Sabron, 10 Nev. 217. But in most of the cases cited, the courts were dealing with the distinction between water courses and mere surface water resulting from rainfall and other temporary or intermittent causes. The distinction we are striving to arrive at is that between "running" and "percolating" water. It is not diffi- cult, except where the subterranean water is not connected in any apparent way with a running stream, either above or under ground. But if it is con- nected with a running stream, the question to be determined is whether it of itself constitutes a water course within the proper legal meaning of the term, or is it a part of such stream. If it is either it is running water and may be api)ropriated under our code. The fact that it runs under ground in no way affects the (|uestion. City of Los Angeles v. Pomeroy, 124 Cal., 597. \'ineland Irr. District v. Azusa Irr. Co., 126 Cal. 486. In the last case cited, the court said (pp. 494, 495) : "It is essential to the nature of percolating waters that they do not form part of the body or flow, surface or subterranean, of any stream. They may either be rain waters, which are slowly infiltrating through the soil, or they may be waters seepinp^ through the banks or bed of a stream, which have so far left the bed and the other waters as to have lost their character as part of the flow. If these waters which the court describes were in fact percolating waters, then plaintiff had the unouestioned right to take them by its tunnel ; and, even if injury resulted to other appropriators or riparian owners upon the stream, they could not be heard to complain. Yet the court grants these defendants an injunction against plaintiff to restrain it from taking such waters. The findings, therefore, must be construed — and they are fairly sus- ceptible of this construction — to mean that plaintiff was drawing its waters from within the bed and channel of the stream, and from its sub-surface flow. That otic may be a lawful appropriator of such zvaters there can be no ques- tion. To hold otherwise would be to deprive vast tracts of arid land of waters thus obtained and nozv beneficially used and employed upon them, and limit the legal taking of 'waters to the surface How alone. The existence of a well- defined sub-surface flow within the bed and banks of streams such as this is well recognized. Says Kin. Irr.. Sec. 44: 'At certain periods of the year water flows on the surface in a well-defined course, and there is at times what is History of the Bench and Bar of California. 115 known as the 'under-flow.' This is the broad and deep subterranean volume of water, which slowly flows through the sand and gravel underlying the most, if not all, the streams which traverse the country adjacent to the mountain systems of the arid regions. These underground streams are probably much greater in volume in some cases than the water upon the surface, and are, as far as rights of appropriation or riparian rights are concerned, but a valuable portion of the well-defined surface stream.' Indeed, illustration of the fact that the trial court itself must of necessity have considered that the taking of sub- terranean waters from the stream by means of such as those employed by plaintiff was a legitimate mode of appropriation is furnished by the finding that the defendant, the Azusa Water Development & Irrigation Company, gave notice of appropriation as requirel by the Code, and proceeded by its tunnel to develop and secure this underflow in manner precisely that employed by plaintiff, and the court distinctly finds that it was a legal appropriator of waters from this same stream. "Wc therefore hold it to be the laiv, and zue think it to be a moderate and just exposition thereof, that one may, by appropriate zvorks, develop and secure to useful purposes the sub-surface Hoiv of our streams, and become, with due regard to the rights of others in the stream, a legal appropriator of waters by so doing. That plaintifif thus was, at the time of the institution of its action, an appropriator, permits of no doubt, but its appropriation was legal only so far as its taking did not imperil or impair the rights of others superior to its own. One may not, of course, tunnel into the bed of such a stream, or dam its underground flow, and by such means draw away either subterranean or sur- face waters the rightful use to which has been secured by others. If, upon the other hand, one can, by development, obtain subterranean waters without injury to the superior rights of others, clearly he should be permitted to do so." This is the declaration of the Supreme Court of the State on the suhject, and states definitely the question of law involved, establishing the right of appropriation of subterranean waters constituting or forming part of a "stream." This leaves only the question of fact whether or not, in each case, the water in controversy is in fact a part of the stream, or is percolating water. This question of fact may not always be easy of solution. Where the dividing line between what shall be held to be running water and what mere percolating water, shall be drawn, must depend upon the facts in each case. The law- applicable to the facts, when found, is definitely and rightly settled. It is so clearly to the best interests of the State that all flowing water shall be subject to appro])riation so that the same shall lie conserved and a]iplic(l tii beneficial uses, that in all cases where there is doul)t as to the class in which a given water supply belongs, the doubt should l)e resolved in favor of its being riui- ning water and subject to appropriation. Btit one of the most interesting questions of fact likely to arise in cases of conflict between appropriators of the surface flow of the stream and appro- priators of the subterranean f\nw is how far the diversion of the undergroimd flow is an encroacliment on the viglits of the apjiropriator of the surface flow. Tt is not infrec|uently the case that the bed of the stream is several hundred feet wide from bank to bank, while the stream flowing on the surface covers but a few feet. Of course a surface dam or other obstrtiction by which the surface flow is diverted does not interce])! the undergi-otuid flow, but allows it to pass 116 History of the Bench and Bar of California. on down stream. The water thus allowed to pass, whether it be immediately under the surface stream or to one side of it, but within its banks is a part of the stream, subject to appropriation. And, not being intercepted or diverted by the diversion of the surface flow, it is surplus water which a subsequent appropriator may take out and use. This is clear enough. But the trouble- some question of fact is whether by intercepting the subterranean flow at a given point and removing it from the bed of the stream, by a tunnel, for example, he thereby diminishes the surface flow at the point of diversion of the prior appropriator of that flow. If he does, he infringes on the rights of the prior appropriator, and may be enjoined from making or continuing such diversion. Subject to this liability, he has the undoubted right to make the appropria- tion. Vineland Irr. Dist. v. Azusa Irr. Co., 126 Cal. 486; Trustees of Delhi v. Youmans, 50 Barb. 316. But there is a better remedy in case of a conflict between the rights of the two appropriators under such circumstances. In such case there is surplus water flowing away under ground that is wholly lost if the appropriator of the surface flow is allowed to enjoin the appropriator of the subterranean flow from making his diversion. In such case, a court of equity has power to ascertain the quantity of water flowing in the stream and award to the first appropriator the amount of water to which he is entitled on account of his diversion of the surface flow, and the balance, which has been added to the a\ailal)le supply by the appropriation of tlie subsequent appropriator, to him. In no case should the party who has appropriated the surface flow, only, be allowed to prevent the later claimant from participating in the waters of the stream at all, by showing merely that in taking out the surplus flow his supply is diminished. The whole of the waters diverted should be equitably divided between them, in order that none of the water shall be allowed to go to waste. There is another element of uncertainty as to the rights of claimants to the w'aters of certain streams that has come about by the increase of the flow by the very act of irrigation. It is noticeable in some localities that since extensive irrigation has been practiced along some of the water courses it has augmented the flow of the streams below. Not only so, but in some places, tracts of land that formerly were "dry," have, by irrigation of lands above them, become "water bearing" lands, some of them cienegas or swamps. This is easily accounted for. As said above, the course of the streams of the state is, in many ca.ses, through a succession of valleys that are natural reservoirs. Subterranean water has been brought to the surface and applied to irrigation, A part of this water passes on to lower levels and in places finds its w^ay into the stream and in other places into lands below. When it finds its way into a stream and becomes a ])art of the flow, it is undoubtedly subject to appro- priation. If it passes into other lands below and remains there, it is a part of History of the Bench and Bar of California. 117 the land itself, belongs to the owner of the land, and is not the subject of appropriation. Assuming that this excess of water has become a part of the stream, either below or above ground, to whom does it belong? In many cases, it was not appropriated water in the first instance, or the subject of ap- priation. It has been drawn from artesian wells, or was percolating water that has been pumped from under ground and applied to irrigation. But, hav- ing been thus brought into use, the very use of it has brought the underground water to a higher level, so much so that some of the water passes off down to and along a near-by running stream. If the users of water from the stream have appropriated a certain quantity of water from the running stream and this addition to the flow has increased the quantity of water to an amount in excess of such appropriation, the solution of this question is easy enough. The added water is "surplus'' water, and may be appropriated by another. But suppose an appropriation has been regularly made, so far as the act of giving notice and performing work under the code is concerned, but the amount filed on is not there, in the beginning, but is made good by the water added as above indi- cated? What then? Is such an appropriator entitled to this new supply of water? It would seem that under such circumstances the appropriator would be entitled to the augmented quantity up to the amount filed upon by him. or so much thereof as may be necessary for his use. In other words, this gradual accession to the flow of "running water" which is the subject of appropriation under our laws, must, whenever it assumes that form, be controlled by such laws the same as other like waters. The fact that it has been added to the stream by artificial means not intended to have that result cannot be allowed to alter the rules of law affecting the use of such water. And if it has not been so concentrated as to become a water course, or "running water," within the law of appropriation of itself, or mingled with and become a part of an already existing water course, but has percolated through and onto lower lands, and there remains stationary or in a state of percolation, it is clearly not within the law of appropriation, but is a part of the land in which it is found, and subject to the use of the owner of the property. If the rights of riparian owners are to be upheld, either as they existed at common law ov in the limited, enlarged, or modified form resulting from the decided cases in this State, the rule must l)e the same, (le])ending upon the nature this addi- tional water supply has assumed, that is to say, whetlicr it has become part (^r all of a water course, or is percolating water. For What Purposes Water May Be Approprialed. The onlv statutory limitation of the pnr])oscs for wjiicli water may be appropriated is that it "muse be for some useful or beneficial purpose." Civil Code, Section 141 i. In the early history of the State, the most important use made of water appropriated, aside from domestic use. was for the operation of mines. And this use still continues in some localities. iUit at the ])resent time, by far the 118 History of the Bench and Bar of California. most of the water used is for the irrigation of trees and growing crops. It may be appropriated, however, for mining, milHng. irrigating, agricultural, horticultural, domestic, or any other useful or beneficial purpose. The ap- propriation, to be valid, must be made with the intention of using it for some such purpose. Pomeroy on Rip. Rights, Sec. 47 ; ]\IcKinney v. Smith, 21 Cal. 374; And there can be no distinction as to the rights of appropriators growing out of the different purposes for which the appropriation is made. Ortman v. Dixon, 13 Cal. 33; McDonald v. Bear River &c. Water Co., 13 Cal. 220. Where Water May Be Appropriated. It is often said, and said in some of the decided cases, that water can on]y 5 be appropriated on government land. It is a little difficult to understand where | this idea ever originated. There is nothing in the code of this State limiting ; the place where appropriations of water may be made. They may be made • on the public lands, because the Congress of the United States has recognized j the right. So far, there can be no question. But it does not follow that the appropriation cannot be made on other lands if leave to do so is obtained. Of course, no filing can be made on the private lands of another, without his } consent, simply because it would be a trespass, the same as an entry upon land for any other unlawful purpose. But the private owner may grant, or consent to such entry and filing upon his lands, the same as the national government may do the same thing. And there is no reason why the owner of land ,, through which a stream passes may not appropriate the water flowing therein I on his own land. It is believed, however, that the limitation of the place of t appropriation to public lands is entirely unwarranted, and that a valid and legal appropriation of water may be made anywhere along the course of a running stream, the waters of which are subject to appropriation, where the \« appropriator has the right, by virtue of his own ownership of the land over or through which the stream flows, to enter upon such stream, or the consent of anyone else having such right, by virtue of his ownership of land over or through which the stream flows. And this is placed upon the ground that the law or right of appropriation of this' State contains no limitation as to the place Avhere an appropriation may be made, and therefore the right exists at any point on the stream, subject only to the rights of others that cannot be violated by entering upon their lands for the purpose of making the appro- priation. As we have seen above, a riparian owner may convey away to another his right to the waters of a stream. It would be singular, therefore, if he could not grant the right to enter upon his lands to make the diversion by which the appropriation of the water must be effected. But if he does not, no entry can be made on his lands to make or complete an appropriation of water. Taylor v. Abbott, 103 Cal. 421. History of the Bench and Bar of California. 119 Hoiv the JJ'ater May Be Appropriated. The right of appropriation of water on the pubHc domain is recognized and allowed by acts of Congress, and rights already vested are preserved. U. S. Rev. Stat, Sees. 2339, 2340; 19 U. S. Stat, at Large, 377, Chap. 107; Jacob V. Lorenz, 98 Cal. 332 ; Broder v. Water Co., loi U. S. 274; Wells V. Nantes, 99 Cal. 583 ; Jennison v. Kirk, 98 U. S. 453 . The acts of Congress on the subject do not create any new right of appro- priation. They only preserve and protect rights already accrued and vested by the law or customs of the State. Jennison v. Kirk, 98 U. S. 453 ; Broder v. Water Co., loi U. S. 274. The manner of making the appropriation is not provided. That is left to legislation or prevailing custom in this State. It is a mistake to suppose that an irrigator obtains his rights from the national government, further than that his right to appropriate water on government lands is recognized, if not granted, by act of Congress, or that the manner of making an appro- priation is governed or controlled by laws enacted by Congress. His rights are, except as above stated, controlled entirely by state laws. The laws of this State provide specifically how appropriation of water may be made : Sec. 1415. A person desiring to appropriate water must post a notice, in writing, in a conspicuous place at the point of intended diversion, stating therein : 1. That he claims the water there flowing to the extent of (giving the number) inches, measured under a four-inch pressure; 2. The purposes for which he claims it, and the place of intended use ; 3. The means by which he intends to divert it, and the size of the flume, ditch, pipe, or aqueduct in which he intends to divert it. A copy of the notice must, within ten days after it is posted, be recorded in the office of the recorder of the county in which it is posted. Sec. 1416. Within sixty days after the notice is posted, the claimant must commence the excavation or construction of the works in which he intends to divert the water, and must prosecute the work diligently and uninterruptedly to completion, unless temporarily interrupted by snows or rain; provided, that if the erection of a dam has been recommended by the California debris com- mission at or near the place where it is intended to divert the water, the claim- ant shall have sixty days after the completion of such dam in which to com- mence the excavation or construction of the works in which he intends to divert the water. Sec. 1417. By "completion" is meant cimdncting the waters to the place of intended use. Civil Code, Sees. 141 5- 141 7. The final and one of tlic necessary acts of appropriation in any case, is the 120 History of the Bench and Bar of California. i\ application of tlie water to some beneficial use, and the proceedings must be with that intention and for that purpose. Civil Code, Sees. 141 1, 141 5; Pomeroy's Rip. Rights, Sees. 47, 49; Tanner's High Line Canal &c. Co. v. Southworth, 21 Pac. Rep. 1028; Fort Morgan L. & C. Co. v. South Platte Ditch Co., 30 Pac. Rep. 1032; Davis V. Gale, 32 Cal. 26; Maeris v. Bicknell, 7 Cal. 261 ; Combs V. Agricultural Ditch Co., 28 Pac. Rep. 966; : Weaver v. Eureka Lake Co., 15 Cal., 271. And if the claimant proceeds under the code provisions for the appropria- tion of water, he must, after posting and recording the required notice, prose- cute the work necessary to make the diversion with ordinary and reasonable despatch. The law does not require unusual or extraordinary effort. Ophir Mining Co. v. Carpenter, 4 Nev. 534. These provisions regulating the manner in which water may be appro- priated are entirely inadequate. There is no limitation upon the amount of water that may be appropriated ; no means by which the quantity of water flowing in the stream during the irrigating season can be ascertained ; no means provided by which the amount actually appropriated by the final act of supplying the water to a useful purpose, can be ascertained in any satis- factorv way. The result is that on almost every stream in the State filings have been made upon many times the quantity of water flowing therein, and it is impossible, by any record required to be kept, to determine how many of the filings have been made good by doing the work required by the statute to be done and the application of the water filed upon, or any part of it, to a bene- ficial use. It can be done only by an actual inspection on the ground. The result is that the rights of riparian owners and appropriators on the different streams are in a condition of almost inextricable confusion that can be reme- died only by expensive litigation, to establish, by judicial decree, the rights of the various claimants. And such a decree can hardly be expected to result in an equitable and just division of the water between the contending parties. It must be to a great extent a guess and an arbitrary division made by the court. The only thing that can be claimed for such a mode of fixing the rights of the parties is that the extent of their claims is made a matter of record and is binding on the parties to the suit and parties taking under them from that time. But it is a nefarious law that permits such confusion of rights and claims and imposes the burden upon irrigation of settling claims to water at such enormous expense. The utter insufficiency of the law of this State regulating the appropriation of water is well understood by all who have had occasion to deal with it. But there seems to be but little disposition to remedy the evil by just and effectual laws. Much money is being expended bv associations, and others interested, to induce the national eovernment to History of the Bench and Bar of California. 121 appropriate money to provide works to store and supply water to arid lands. The effort is commendable. But the enterprising citizens who are urging this course might well look closer at home and provide by proper legislation, for the care and conservation of the water we have and the protection of bona fide claimants of water who have already expended their means in diverting and applying to beneficial uses in which the whole State is interested, the water already developed. In speaking of the existing laws regulating the appropriation of water, Prof. Ehvood Mead, formerly State Engineer of Wyoming, who has given the subject much intelligent thought, has this to say in a paper entitled "Water Rights on the Missouri River and its Tribu- taries :" — "On many rivers there are now a multitude of claims to the common supply. These rights have to be defined in some way. If laws do not define them, a resort to the courts is all that intervenes between the just rights oi water-users and anarchy. In many States the exigencies created by a failure to enact an administrative code have compelled the courts to become practi- cally both the creators and enforcers of water laws. They have to devise a procedure for adjudications, supplement the statute law in deciding what rights have been established, and finally have to protect irrigators' priorities by a liberal exercise of government by injunction. The growing volume of this litigation, together with the uncertain and contradictory character of many of the decisions, is making it a heavy burden to irrigators and a serious menace to progress. Unless it can in some way be restricted, it threatens to impair the value of investments in ditches and the success of this form of agriculture. In ten years the water-right litigation of one State is estimated to have cost over a million dollars. In many sections it has exceeded the money expended in constructing the ditches in which it has its origin. "These conditions are not met with in every State. In two States it costs an appropriator less to establish his right to water than it does to prove up on the land it fertilizes, and it is done by the same direct methods. Litigation is conspicuous for its absence, either in acquiring water rights or in preventing interference by subsequent appropriators with their enjoyment. In these two States public control of streams is as much a part of the state government as is the control of public land a part of the national government. "Wherever rights to water are restricted to its beneficial use, and where such use is followed promptly by the determination of the extent of such rights, controversies are as rare as they are over land filings; and where these laws begin by prohibiting speculative filings and end with adequate protection for just ones, there are no more contests among farmers who depend on rivers than there arc between those who depend on rain. Litigation does not arise because irrigators desire it. It has its origin either in ignorance of the law or in its imperfections." This is a just criticism on existing laws in this State. In some of the states, as said in this extract, better and more efticient laws have been enacted. For example, in the State of Wyoming a system of ]iroccdtn"c has been pro- vided for that goes far to remedy the defects fruni wliich we suffer. It is worthy of notice in this connection. Briefly stated, its prominent featiu-es are these : -\ state board of control is provided f(^r. com])osc(l of the state engineer and four superintendents, one from each of fimr water tate. according to their priorities, but. at the same time, to confine their claims and their use of History of the Bench and Bar of California. 125 water to the amount reasonably necessary for their purposes, thus conserving the water and extending its benefits as far as is consistent with the necessities of those who desire to share in such lienefits. Tliis being so, the common cus- tom of fiHng on a stream for a large amount of water when only a small amount is needed, only tends to complicate the conditions and can result in no benefit to the appropriator, as the amount he attempts to appropriate by his notice is not the measure of his rights in the water of the stream, but the amount he uses or needs and may put to a beneficial use within a reason- able time; and surplus water is always open to appropriation. Natoma ^^^ & M. Co. v. Hancock. loi Cal., 42. But the courts have shown a disposition to construe the statute liberally in favor of the appropriator of water under it in respect of the attempt to comply with its terms in making the appropriation. Osgood V. El Dorado Water &c. Co., 56 Cal., 571. So if the appropriator has filed and recorded a notice substantially in con- formity to the statute and prosecuted the work of diversion with reasonable diligence to completion, his appropriation is complete. Civil Code, Sec. 1416; Osgood V. El Dorado Water &c. Co., 56 Cal., 571 ; Under our code, the work necessary for the diversion includes the con- ducting of the water to the place of intended use. Civil Code, Sec. 141 7. But where the diversion is for the irrigation of land, it is believed that a reasonable time should be allowed for getting the land in cultivation and making the application of it. Conant v. Jones, 32 Pac. Rep. (Ida.). 250. How Right Acquired by Appropriation May Be Lost. In this respect, the right of an appropriator differs from that of a riparian owner, in that while the latter cannot lose his right by mere failure to use the water to which he is entitled, such non-user on the part of an appropriator may amount to an abandonment of and loss of his rights. Kirman v. Hunnewell, 93 Cal., 519. So he may lose his rights by adverse use of the water by another. Faulkner v. Rondoni, 104 Cal., 140; Gallaher v. Montecito &c. W. Co., loi Cal., 243: American Co. v. Bradford, 27 Cal., 360: Union Water Co. v. Crary, 25 Cal., 504: Cox V. Clough. 70 Cal.. 345. .\n(l l)y grant, as an appurtenant to the land irrigated. Crooker v. Benton, 93 Cal., 365. Or even without conveyance of the land. McDonald v. Bear River &c. ^^^atcr Co.. 13 Cal., 220. 232; Pomeroy's Rip. Rights, Sec. 5!^ : Fort Morgan L. &c. Co. v. South Platte Ditch Co., 30 Pac. Rep., 1032: 126 History of the Bench and Bar of California. Thomas v. Guiraud, 6 Col., 530; Kelly V. Natoma Water Co., 6 Cal., 105; Strickler v. Colorado Springs, 26 Pac Rep., 313. And by condemnation. San Francisco and Alameda Water Co. v. Alameda Water Co.. 36 Cal., 639; Spring Valley W^ater Works v. San Mateo Water Works, 64 Cal., 123. OF APPROPRIATION OF W'ATER FOR SALE, RENTAL OR DISTRIBUTION. I So far as the mode or manner of appropriating or otherwise acquiring the right to di\ert and use water is concerned, there is no material difference between an ap])ropriation for pri\'ate use and one for sale, rental or distribu- tion to the public, except that as a corporation is acting for the public, it may condemn the right to divert water for such purpose. There are two most important questions growing out of the appropria- tion of water for public use, viz., what interest or ownership has the corpora- tion in the water appropriated for sale, rental or distribution to others, before and after it has supplied the water appropriated to its consumers, and what compensation is it entitled to 'receive for the right to the preferred use of the water and for the water supplied. The State has, by its constitution and statutes, imposed certain limitations and restrictions upon corporations appro- priating water for the pul)lic use both as to the character and extent of its ownership in and right to deal with the water and the compensation it shall receive for the water it supplies to others. Various statutes have been enacted with a view of authorizing corpora- tions to appropriate water for distribution to the public and at the same time preserve in the State the right and power to regulate and control the exercise of such right. Stat. 1852, p. 17T ; Stat. 1858, p. 218; Stat. 1862, p. 540; Stat. 1880, p. 59. Stat. T885, p. 95. Some of these statutes do not call for any extended notice, as they have been superseded by later ones. But the statute of 1858 provided for the fixing of rates to be charged by water companies by commissioners. The provisions of this act related to water sup|)]ie(l to any city (/;/(/ county or city or town, and not to counties. Section 4 is as follows : — "All corporations formed under the provisions of this act. or claiming anj' of the privileges of the same, shall furnish pure fresh water to the inhabitants of such city and county, or city nr town, for family uses, so long as the supply History of the Bench and Bar of California. 127 permits, at reasona1)le rates and without distinction of persons, upon proper demand therefor, and shall furnish water, to the extent of their means, to such city and county, or city, or town, in case of fire or other great necessity, free of charge. And the rates to be charged for water shall be determined by a board of commissioners, to be selected as follows: Two by such city and county, or city or town authorities, and two by the water company ; and in case that four cannot agree to the valuation, then, in that case, the four shall choose a fifth person, and he shall become a member of said board : if the four commissioners cannot agree upon a fifth, then the sheriflf of the county shall appoint such fifth person, the decision of a majority of said board shall determine the rates to be charged for water for one year, and until new- rates shall be established. The board of supervisors, or the proper city or town authorities, may prescribe such other proper rules relating to the delivery of water, not inconsistent with this act, and the laws and constitution of this State." Stat. 1858, p. 219, Sec. 4. The statute of 1862 related to water furnished in counties outside of cities and towns and provided : "Every company organized as aforesaid shall have power, and the same is hereby granted, to make rules and regulations for the management and preser- vation of their works, not inconsistent with the laws of this State, and for the use and distribution of the waters and the navigation of the canals, and to establish, collect, and receive rates, water rents, or tolls, which shall be subject to regulation by the board of supervisors of the county or counties in which the work is situated, but which shall not be reduced by the supervisors so low as to yield to the stockholders less than one and one-half per cent, per month upon the capital actually invested." Stat. 1862, pp. 540, 541, Sec. 3. In 1879, our present constitution was adopted, and went into effect January I, 1880. Article XIV of the constitution is as follows: — "USE AND RATES. "Section I. The use of all water now appropriated, or that may hereafter be appropriated, for sale, rental, or distribution, is hereby declared to be a public use. and subject to the regulation and control of the State, in the manner to be prescribed by law ; provided, that the rates or compensation to be collected by any person, company, or corporation in this State for the use of water supplied to any city and county, or city or town, or the inhabitants thereof, shall be fixed, annually, by the board of supervisors, or city and county, or city or town council, or other governing body of such city and county, or city or town, by ordinance or otherwise, in the manner that other ordinances or legislative acts or resolutions are passed by such body, and shall continue in force for one year, and no longer. Such ordinances or resolutions shall be passed in the month of February of each year, and take effect on the first day of July thereafter. Any board or body failing to pass the necessary ordinances or resolutions fixing water-rates, where necessary, within such time, shall be . subject to peremptory process to compel action at the suit of any party inter- ested, and shall be liable to such further processes and penalties as the legis- lature may prescribe. Any person, company, or corporation collecting water- rates in any city and county, or city or town in this State, otherwise than as so established, shall forfeit the franchises and water-works of such person, company, or corporation to the city and county, or city or town where the same are collected, for the public use. 128 History of the Bench and Bar of California. "RIGHT TO COLLECT WATER RATES A FRANCHISE. "Sec. 2. The right to collect rates or compensation for the use of water supplied to any county, city and county, or town, or the inhabitants thereof, is a franchise, and cannot be exercised except by authority of and in the manner prescribed by law." Const. Cal., Art. XIV, Sees, i and 2. The Spring- \' alley Water Works was organized to supply water to the city and county of San Francisco, under the act of 1858. When the new constitution took effect, the supervisors of San Francisco asserted the right to fix rates for that company as provided in the constitution. The Com- pany, on the other hand, maintained that ha\ing been organized under this act providing for the fixing of rates as therein specified, giving the company the right to select two of the commissioners, it became vested with the right to have the rates so fixed, and the constitution of this State pro- viding for the establishment of rates in a different way and by a different body, was in violation of the Constitution of the United States. But in the case of the Spring Valley Water Works v. Schottler, no U. S., 47, the Supreme Court of the United States held that the change in the mode of fixing the rates was within the power of the State, as against a corporation organized under the act of 1858, and that it violated no provision of the Constitution of the United States. Spring Valley Water U'orks v. Board of Supervisors, 61 Cal., 3, is to the same effect. And it has been held, uniformly, by the Federal and State courts, that this power of regulation of rates and compensation exists in the State, and that the only power of the courts, in dealing with the action of a legislative or other body, establishing rates to be charged, is to inquire whether the rates are fairly fixed upon proper investigation, and to set them aside if it shall appear that they are so unreasonable as to make their enforcement equiva- lent to the taking of ])r()])erty for public use without just compensation. Munn v. Illinois, 94 U. S., 113; Spring Valley Water W^orks v. Schottler, no U. S., 347; Spring Valley Water Works v. San Francisco, 82 Cal., 286; Stone v. Farmers' Loan and Trust Co., 116 U. S., 307; Dow v. Beidelman, 125 U. S., 680; Georgia Banking Co. v. Smith, 128 U. S., 174; Chicago & N. W^ Ry. Co. v. Dey, 35 Fed. Rep., 866; San Diego Land and Town Co. v. National City, 74 Fed. Rep., 79; San Diego Land and Town Co. v. X'ational City, 174 Y. S., 739^ Smyth V. Ames, 169 U. S., 466; San Diego Water Co. v. City of San Diego, 118 Cal, 556. As it is firmly established that the State possesses the power of regula- tion and that the courts can only interfere to prevent the enforcement of unreasonable rates, it is necessary to inquire what will be regarded as History of the Bench and Bar of California. 129 reasonable rates, and what shall be taken into account in an effort to deter- mine what is just compensation. In considering this question, the fixing of rates by city and town authorities must be distinguished from the fixing of rates outside of cities and towns by boards of supervisors. In the latter case, the question of water rights and the effect of the acquisition thereof by a prop- erty-owner from the company is involved, and will be considered. I. Fixing of Rates in Cities and Tozuns. It will be noticed from the provisions above quoted that the use of all water appropriated or to be appropriated for sale, rental and distribution is declared to be a public use, and the rates are required to be fixed, annually, by the city or town authorities, and that any company collecting water rates otherwise than as so established shall forfeit its franchises and water works to the city and county or city or town for the public use. Const. California, Art. XIV. The constitution contains no limitation of the power of the city or town authorities; no provision as to what shall constitute reasonable rates or basis upon which rates shall be established. No appeal is given to any other court or body. So far as its own provisions are concerned, the power of the bodies to whom this important jurisdiction over the property of water companies is given is wholly arbitrary and unlimited, and the company is bound by any rates such bodies may establish, under penalty of the forfeiture of all of its property, if it shall charge a higher rate than the one so established. The constitution is an unreasonable and vicious one in that it vests in the pur- chaser of the water from the company the power to fix his own price upon it and compels the company to furnish the water at the price thus fixed on penalty of forfeiture of its plant. The constitution has thus been made the means of great wrong and injustice without the possibility of relief by fair and legitimate means, capital invested in the development of water for public use has been sacrificed, and the further investment of capital for this purpose has been effectually and forever suppressed so long as the laws now in force, construed as they are by the courts, are allowed to exist. And they are not likely to be materially changed in the near future. As against the natural, the inevitable tendency of the bodies authorized to fix rates to act in the interest of themselves and other consumers, the courts have asserted jurisdiction only to the extent of inquiring whether rates estab- lished are so unreasonable as to amount to the taking of property without just compensation, in violation of the Constitution of the United vStates. And even this power in the courts was practically denied by the v^uprcmc Court of the United States in the beginning of judicial controversy on the subject. In Munn v. Illinois, 94 U. S. 113, it is said : "It is insisted, however, that the owner of property is entitled to a reason- able compensation for its use, even though it be clothed with a public interest. and that what is reasonable is a judicial and not a legislative question. "As has already been shown, the practice has been otherwise. In countries 130 History of the Bench and Bar of California. . where the common law prevails, it has been customary from time immemoriai for the legislature to declare what shall be a reasonable compensation under such circumstances, or, perhaps more properly speaking, to fix a maximum beyond which any charge made would be unreasonable. Undoubtedly, in mere private contracts, relating to matters in which the public has no interest, what is reasonable must be ascertained judicially. But this is because the legisla- ture has no control over such a contract. So, too, in matters which do affect the public interest, and as to which legislative control may be exercised, if there are no statutory regulations upon the subject, the courts must determine what is reasonable. The controlling fact is the power to regulate at all. If that exists, the right to establish the maximum of charge, as one of the means of regulation, is implied. In fact, the common-law rule, which requires the charge to be reasonable, is itself a regulation as to price. Without it the owner could make his rates at will, and compel the public to yield to his terms, or forego the use. . . . "We know that this is a power which may be abused ; but that is no argument against its existence. For protection against abuses by legislatures the people must resort to the polls, not to the courts." Munn V. Illinois, 94 U. S., 113, 133. See also Peik v. Chicago &c. Railway Co., 94 U. S., 164, 178. This was equivalent to saying that the power to say what were reasonable rates rested exclusively with the legislature, and that the courts had no power to interfere. But the court rendering this decision, and others rendered about the same time, and known as the Granger cases, has not adhered to it, but has, without overruling it in terms, so changed and modified the rule laid down as to amount to the same thing. One step in that direction was to hold that if rates were made so low as not to return some compensation over and above interest on bonds and operating expenses, they were void as amounting to the taking of property without just compensation. So it was said in Spring Valley Water Works v. Schottler, no U. S., 354: "Like every other tribunal established by the legislature for such a pur- pose, their duties are judicial in their nature, and they are bound in morals and in law to exercise an honest judgment as to all matters submitted for their ofificiil determination." Again, in Railway Co. v. Minnesota, 134 U. S., 118, the court held a statute of Minnesota void because, as construed by the highest court of that state, it made the action of a commission fixing rates conclusive and not open to judicial inquiry as to the reasonableness of such rates. The court said (P. 466) :- "This being the construction of the statute by wnich we are bound in con- sidering the present case, we are of opinion that, so construed, it conflicts with the Constitution of the United States in the particulars complained of by the railroad company. It deprives the company of its right to a judicial investiga- tion, by due process of law, under the forms and with the machinery provided by the wisdom of successive ages for the investigation, judicially, of the truth of a matter in controversy, and substitutes therefor, as an absolute finality, the action of a railroad commission, which, in view of the powers conceded to it by the State court, cannot be regarded as clothed with judicial functions, or possessing the machinery of a court of justice." * I History of the Bench and Bar of California. 131 And in later cases the court has entirely abandoned the rigid rule first declared that the action of the legislature was conclusive, and firmly estab- lished the better and more reasonable doctrine that the courts may inquire into the reasonableness of the rates by whomsoever they may be established, and if found to be unreasonable, prevent their enforcement. Spring Valley Water Works v. Schottler, no U. S., 347; Stone V. Farmers' Loan and Trust Co., 116 U. S., 307; Georgia Banking Co. v. Smith, 128 U. S., 174; Budd V. People, 143 U. S., 517; Reagan v. Farmers' Loan and Trust Co., 154 U. S.. 399; Smyth V. Ames, 169 U. S., 544; San Diego Land and Town Co. v. National City, 174 U. S., 739. The latest declaration of the Supreme Court of the United States as to the respective powers of the legislative and judicial departments of govern- ment, in the establishment, determination and enforcement of rates, is found in San Diego Land and Town Co. v. National City. 174 U. S., 739, 753. The court says in that case : "That it was competent for the State of California to declare that the use of all water appropriated for sale, rental, or distribution should be a public use and subject to public regulation and control, and that it could confer upon the proper municipal corporation power to fix the rates or compensation to be col- lected for the use of water supplied to any city, county, or town or to the inhab- itants thereof, is not disputed, and is not, as we think, to be doubted. It is equally clear that this power could not be exercised arbitrarily and without reference to what was just and reasonable as between the public and those who appropriated water and supplied it for general use ; for the State cannot by any of its agencies, legislative, executive, or judicial, withhold from the owners of private property just compensation for its use. That would be a deprivaton of property without due process of law. Chicago, Burlington & Q. Railroad Co. v. Chicago, 166 U. S., 226; Smyth v. Ames, 169 U. S., 466, 524. But it should also be remembered that the judiciary ought not to interfere with the collection of rates established under legislative sanction unless they are so plainly and palpably unreasonable as to make their enforcement equivalent to the taking of property for public use without such compensation as under all the circumstances is just both to the owner and to the public; that is, judicial interference should never occur unless the case presents, clearly and beyond all doubt, such a flagrant attack upon the rights of property under the guise of regulations as to compel the court to say that the rates prescribed will necessarily have the effect to deny just compensa- tion for private property taken for public use. Chicago & Grand Trunk Railway Co. V. Wellman, 143 U. S. 339, 344; Reagan v. Farmers' Loan & Trust Co., 154 U. S., 362, 399: Smyth V. Ames, above cited. See also Henderson Bridge Co. V. Henderson City, 173 U. S. 592, 614, 615 {ante, 823, 831)." If we turn to the decided cases in our own State, we find that from the beginning, the Supreme Court of this State has upheld the right and power of the legislature, or other official bodies vested by it, or authorized to act. to establish and enforce rates to be charged for water supplied, but that the court has. at the same time, declared and upheld the jurisdiction of the courts of the State to inquire into the reasonableness of such rates and to declare them void and prevent their enforcement if found to be unreasonable. 132 History of the Bench and Bar of California. Spring Valley Water Works v. San Francisco, 82 Cal., 286; Jacobs V. Board of Supervisors, 100 Cal., 121 ; San Diego Water Co. v. City of San Diego, 118 Cal., 556; Recllands, Lugonia &c. Water Co. v. City of Redlands, 121 Cal., 365; Redlands, Lugonia &c. W^ater Co. v. City of Redlands, 121 Cal., 312. The doctrine that the legislative power to fix rates was beyond judicial inquiry, at first declared by the Supreme Court of the United States, and afterwards abandoned, was never recognized by the Supreme Court of Cali- fornia. It was declared in the case first above cited, that : — "When the constitution provides for the fixing of rates or compensation, it means reasonable rates and just compensation. To fix such rates and compensa- tion is the duty and within the jurisdiction of the board. To fix rates not rea- sonable or compensation not just is a plain violation of its duty." So we may regard it as firmly and finally settled, in this State, that when the common council or other governing body of a city or town, or the board of supervisors of a city have established rates, the courts may inquire wdiether such rates are reasonable or not, and if found to be unreasonable, declare them void and enjoin their enforcement. But this has only brought us to the more difficult question : what are such unreasonable rates as will authorize the interference of the courts, and what shall be taken into account in attempting to determine whether rates estab- lished in a given case are reasonable or unreasonable. This would seem to be an easy enough question. But the courts have made it anything but easy by their many conflicting decisions. It is easy enough to ascertain what amount a company has expended for the public use and benefit in the con- struction of its plant. It ought not to be difficult to ascertain what its oper- ating expenses are, with reasonable certainty. The extent of its loss by wear and tear of its plant ought to be arrived at closely enough to avoid any great injustice to the company or its consumers. It ought not to be difficult to arrive at the revenues derived from rates established and collected for previous years as a guide in fixing present rates. In order that the proper basis should be had and information supplied for use in fixing rates, an act was passed by the legislature authorizing and requiring the board of supervisors of any city and county or other governing body, to require by ordinance or otherwise, any corporation, company or person supplying water, to furnish, in the month of January in each year, a detailed statement, verified by the oath of the president and secretary of the corporation or company, or of such person, ''showing the name of each water-rate payer, his or her place of residence, and the amount paid for water by each of such water-rate payers during the year preceding the date of such statement, and also showing all revenues derived from all sources, and an itemized statement of expenditures made for supplying water during said time," also a sworn "detailed statement showing the amount of money actually expended annually, since commencing business, in the purchase, construction and maintenance, respectively, of the property History of the Bench and Bar of California. 133 necessary to the carrying on of its business, and also the gross cash receipts annually for the same period from all sources." Stat. 1881, p. 54. This statute was evidently intended to call for the information necessary to form a proper basis for fixing the rates. It is perfectly apparent that it was intended that the cost of the plant, or the money expended in its con- struction, and the operating expenses, should form the basis of any rates to be established. But it is believed that in the decided cases in this State this evident intention of the legislature as indicated by the statute quoted from has been overlooked or disregarded. In the early case of Spring Valley Water Works v. San Francisco, 82 Cal., 286, the question as to what should be considered in an effort to ascertain what are reasonable rates was not decided. It was held generally, however, that : "The courts cannot, after the board has fully and fairly investigated and acted, by fixing what it believes to be reasonable rates, step in and say its action shall be set aside and nullified, because the courts, upon a similar investigation, have come to a different conclusion as to the reasonableness of the rates fixed. There must be actual fraud in fixing the rates, or they must be so palpably and grossly unreasonable and unjust as to amount to the same thing." (P. 306.) The cjuestion came before the court again in San Diego Water Co. v. City of San Diego, 118 Cal., 556, where an attempt was made to lay down some rule by which it should be determined whether rates were or were not reason- able. The court was hopelessly divided on the subject. The opinion of three of the Justices, Van Fleet, Henshaw and McFarland, held in an opinion written by the former, that the money reasonably and properly expended by the company in acquiring and constructing its works should be taken as the basis in fixing rates, and a reasonable compensation for such expenditures should be provided. In the course of the opinion referred to, it is said : "What that standard is, as applied to the present case, we think not difficult of ascertainment. As we have said, it is not the water or the distributing works which the compauy may be said to own, and the value of which is to be ascer- tained. They were acquired and contributed for the use of the public ; the public may be said to be the real owner, and the company only the agent of the public to administer their use. What the company has parted with, what the public has acquired, is the money reasonably and properly expended by the company in acquiring its property and constructing its works. The State has taken the use of that money, and it is for that use that it must provide just compensation. What revenue money is capable of producing is a question of fact, and, theoret- ically at least, susceptible of more or less exact ascertainment. Regard must be had to the nature of the investment, the risk attendant upon it, and the public demand for the product of the enterprise. It would not, of course, be reason- able to allow the company a profit equal to the greatest rate of interest realized upon any kind of investment, nor, on the other hand, to compel it to accept the lowest rate of remuneration which capital ever obtains. Comparison must be made between this business and other kinds of business involving a similar degree of risk, and all the surrounding circumstances must be considered. An important circumstance will always be the rate of interest at which money can be borrowed for investment in such a business; and, where the business 134 History of the Bench and Bar of California. appears to be honestly and prudently conducted, the rate which the company would be compelled to pay for borrowed money will furnish a safe, though not always conclusive criterion of the rate of profit which will be deemed reasonable. In ordinary cases, where the management is fair and economical, it would be unreasonable to fix the rates so low as to prevent the company from paying interest on borrowed money at the lowest market rate obtainable ; and even then, some allowance or margin should be made for any risk to which the company may be exposed, over and above the risk taken by a lender. "But it is contended that the power of the court is at most to inquire whether some reward will be provided by the rates fixed and that if some re- ward, however small, is so provided, the court cannot interfere. We have been referred to dicta in some of the cases which do support that contention ; but we are unable to agree with that conclusion. It is an elementary doctrine of con- stitutional law that the question of just compensation is a judicial question to be determined in the ordinary course of judicial proceedings; and, construing arti- cle XIV of our constitution with section 14 of article I (as we think we are bound to do), we find no difficulty in holding that whenever the rates fixed by the council are grossly and palpably insufficient to furnish such a revenue as will afford just compensation within the rules above declared, redress may be had in the courts." From this it was reasonable to hope that some measure of justice would eventually be dealt out to corporations and others supplying water to the public. In the same case, in a dissenting opinion of the Chief Justice, it was said (p. 588) : "I think the judgment and order appealed from should be affirmed. In fixing water rates, it is the duty of the city council to provide for a just and reasonable compensation to the water company. Anything short of that is simple confiscation, and is not only a violation of constitutional rights, but is an extremely short-sighted policy. Rates ought to be adjusted to the value of the service rendered, and that means that the water companies should be allowed to collect annually a gross income sufficient to pay current expenses, maintain the necessary plant in a state of efficiency, and declare a dividend to stockholders equal to at least the lowest current rates of interest, not on the par or market value of the stock, but on the actual value of the property necessarily used in providing and distributing the water to consumers. To arrive at the actual value of the plant, water rights, real estate, etc., cost is an element to be considered, but it is not conclusive. The plant may have cost too much, it may have been planned upon too liberal a scale, its construc- tion may have been extravagantly managed, the real estate and water rights may have cost less or more than their present value, and, therefore, cost will sel- dom represent the actual capital at present invested in the works, but such present value is the true basis upon which compensation, in the shape of divi- dends, is to be allowed. As to current expenses, all operating expenses reasonably and properly in- curred should be allowed, taxes should be allowed, and the cost of current repairs. In addition to this, if there is any part of the plant, such as main pipes, etc., which at the end of a term of years — twenty years, for instance — will be so de- cayed and worn out as to require restoration, an annual allowance should be made for a sinking fund sufficient to replace such part of the plant when it is worn out." This was arriving at practically the same result as would have been reached by the basis fixed by the other three Justices. In arriving at the compensation that should properly be allowed, the Chief Justice takes the History of the Bench and Bar of California. 135 present value as the basis of compensation, instead of the original cost, as in the other opinion. But he holds that in addition to a reasonable return on the present value, the company should be allowed sufficient revenue to make good the decay or depreciation of the perishable portion of the plant, and above this and expenses of operation and repairs, dividends to the stockholders of not less than the current rate of interest should be provided by the rates. Either of the modes laid down in the two opinions cited would lead to fair and just results, both to water companies and consumers. The allowance for depreciation by the Chief Justice in connection with the basis of an allow- ance on the present value is, perhaps, nearer a fair and equitable solution of this vexed question than any other. But its weakness consists in the fact that it is utterly impossible to arrive, at any given time, at the present value of the plant. Most of it is under ground, and its condition must be a matter of mere conjecture or opinion. On the other hand, the actual cost of the plant, and what should reasonably have been expended in its construction, should be easy to ascertain. And, of course, the actual cost should never be allowed for where it is shown that such cost was extravagant or unneces- sary. But whatever amount a company has reasonably and necessarily expended in supplying water to its consumers, is so much expended for their use and benefit, and on that amount they should be required to pay a reason- able rate of interest by the rates established. But there were other opinions delivered in the case under consideration. Mr. Justice Garoutte took the ground, once declared in some of the decisions of the Federal courts, but long since abandoned, that if some revenue can be derived by the company from the rates, however small, the courts cannot interfere. He says (p. 581) : "Taking the findings of fact as they stand, the schedule of rates fixed by the city should not be disturbed. The valuation of the plant is $750,000; the operating and current expenses are $40,000. The revenue from the sale of water under the schedule of rates would be and actually was $65,000. This leaves a profit of $25,000 upon the investment. To be sure it is small, tvlioi zvc consider the amount of money invested. To be sure it is not enough, and possibly not one-half the sum that could be earned if that amount of money ivas invested in other business undertakings, but with these things we have nothing to do. Those are matters passed upon by the city in the exercise of a discretion granted by the constitution, and its decision as to the reasonableness of the amount of revenue to be derived by the company from the rates is conclusive upon tjie courts. While this sum is not enough upon this character of investment, still it is three and one-half per cent, and such return is a substantial profit. We mean it is so substantial that a court of equity in view of the law of the land, cannot .say that the rates are so unreasonable as to be confiscatory in character, and thus violate any principle of constitutional law." Thus it is conceded by the justice writing this .qiiniiui tli;il the rates in question are unreasonable. But, while asserting in the opinion that rea.son- able rates must be allowed, and that the courts have the power to interfere and prevent the enforcement of unreasonable rates, he holds, nevertheless, 136 History of the Bench and Bar of California. that these unreasonable rates, held to be so by him, cannot be set aside. But to make it still worse, the court below had found, as one of the facts in the case, that the depreciation of the plant of the company amounted to three and one-half per cent, per annum, the full amount the rates would return, as held by him, and he concluded that no allowance could be made for this loss. And further, the court found that the plant was constructed on borrowed capital, on which the company was paying Hve per cent, interest. But in the estima- tion of the writer of the opinion, this was wholly immaterial, although it showed that as the rates yielded only three and a half per cent., the company must necessarily lose one and a half per cent, per annum. Such a construction of the laws of the State and the rights of those who have invested their money in enterprises looking to the development and supply of water does not tend to encourage such enterprises or impress a candid mind with the justice of such laws. But there were still other opinions delivered in this same case. Mr. Justice Temple takes the ground that there is "no obligation to remunerate water companies for investments made or to allow interest thereon, either upon first cost or present value," and that as to the cost of bringing water into the city and distributing it, "these matters are merely incidental, and never determinative," and he "agrees, generally, in the views expressed in the opinion of Justice Garoutte,'' and concludes by saying: "The only proper judicial question is whether compensating rates have been fixed. Whether they are too high or too lozv is not a judicial question. The judge cannot substitute his judgment for that of the body to whom the discre- tion is given by the constitution." By "compensating rates," is meant, it is supposed, such rates as will return the company some tiling over and above operating expenses, no matter how little. Mr. Justice Harrison, in another separate opinion, holds that the present value, and not the cost of the plant, must be taken as the basis of fixing the rates, but holds further that the courts have no power to inquire into the reasonableness of the rates, saying: "In designating the city council as the body to fix these rates the constitu- tion has clearly indicated that they are not to be fixed by the courts. The water company has the right to protection by the judiciary from the enforcement of such rates as will deprive it of compensation for furnishing the water; but if the rates fixed by the council afford compensation to the water company, the question of the reasonableness of this compensation is a question of fact which is not open to review by the courts. If the courts are authorized to determine the amount of compensation which will be reasonable, the rates will be fixed by them, rather than by the city council ; and, for the same reason, the city coun- cil, and not the courts, are authorized to determine whether the rates, to be rea- sonable, shall be fixed at such amount as will yield to the water company any definite rate of interest." This is the most radical ground taken by any of the Justices. Since the Supreme Court of the United States has unequivocally abandoned this same History of the Boich and Bar of California. 137 doctrine, laid down in Mimn v. Illinois, and the other Granger cases, this conclusion of Justice Harrison has no support in authority, and it would be difficult to find any support for it it reason or justice. The conclusion is a purely arbitrary one, and cannot but be harmful because of its injustice. It may be said that out of the diversity of opinions exhibited in this case, no definite results can be extracted further than that a majority of the court, ■vyhile disagreeing as to the manner of reaching proper results, did announce a reasonable and just conclusion as to the rights of water companies and their consumers. But this rational and just position, taken by the majority of the court, has not borne fruit in later decisions of the court, unfortu- nately. In the case of Redlands, Lugonia &c. Water Co. v. Redlands, 121 Cal., 312, the opinion was written by Mr. Justice Harrison, who- had taken such radical ground in the San Diego case, and concurred in by Justice Gar- outte, who had taken like ground in the former case. Justice Van Fleet concurred in the judgment only. It is said in the opinion that it was held in the San Diego case that the interest on the indebtedness of the company is not a proper item of expenditure to be provided in fixing the rates, and that the company was not entitled to have rates so fixed as to enable it to set apart a certain amount each year for the depreciation of its plant, and as the judg- ment of the court below allowed these amounts, it was reversed on the ground that it was inconsistent with the San Diego case. It will be seen from the review of the opinions in the San Diego case, above, that it amounted to nothing more than a reversal of the case without actually determining any principle of law. The case was reversed solely because two certain findings of the court below were held not to be sus- tained by the evidence. And this later case, not being concurred in, so far as its reasoning is concerned, by all of the Judges, and being in department, decides nothing except that the case be reversed. But there is still another case between the same parties, reported in 121 Cal., 365, and decided in banc. In this case, also. Justice Harrison again wrote the opinion. The opinion was concurred in by Justices Garoutte, Temple and Henshaw, and Justice Van Fleet again concurred in the judgment only. Chief Justice Beatty and Justice McFarland did not participate in the decision. The court declares that certain things were decided in the San Diego case and reaffirms the rule laid down by Justice Harri.=on in Redlands &c. Water Co. v. Redlands, decided two days earlier, that the present value of the plant must be taken as the basis of fixing rates and that provision for payment of interest on the bonded indebt- edness of the company was not necessary, and fortifies this position by citing Smyth V. Ames, 169 U. S., 466. This case, like the other, is decided on an entirely difi^erent ground, viz., that there was no proof of the value of the plant, and as that was an essential element in determining whether the rates were reasonable or not, the decision of the court below tliat the rates were reasonable must be affirmed. 138 History of the Bench and Bar of California. But, taking all of the decisions together, it may he safely said to be the judgment of the Supreme Court of this State that in fixing rates the bonded indebtedness, or the amount of interest paid upon it, is immaterial, and that the present value of the plant, and not its cost, must be taken as the basis of fixing the rates. Whether the depreciation of the plant should be considered and made good by the rates has not been decided. It is claimed that depreciation is made good by an allowance for repairs. If it were true that the loss by depreciatioii could be met in the way indicated, the position taken would be unassailable. But it is far from being true. Repairs, in the proper sense, are the ordinary patching of pipes where leaks occur, and the replace- ment of a piece of pipe here and there, as defects are foui^ or breaks occur, and work of a similar kind, each year. But while these repairs are going on, the whole plant is slowly but surely going to decay, and sooner or later, whole pipe lines, and eventually the whole distributing system, must be replaced. Unless this loss is made good by rates allowed, the company must eventually lose its plant. In the case of San Diego Water Co. v. San Diego, re\'iewed above, it was proved and found by the court that the depreciation amounted to three and a half per cent, per annum. The case was reversed, and retried by another judge, and the same finding was made. This is a heavy loss that, under the decisions of the Supreme Court, would amount to the full sum held by the court to be reasonable compensation to the company. There can be no doubt whatever that if the Supreme Court of this State adheres to the narrow and unjust construction of our irrigation laws found in the cases already cited, it means the final financial ruin of all companies supplying water under such laws, unless the members of the bodies to whom the important duty of fixing such rates, realize the folly of establishing such rates as must destroy the companies or individuals that have already invested their money in sueh enterprises and prevent all fiu'ther investments. There is dine other unjust feature of the law relating to the fixing of rates in citij^s and towns. The law provides that such rates must be fixed every year. If an ordinance fixing confiscatory rates is adopted, the suffering com- pany has no remedy but to go into the courts. It cannot liy any poslsibility reach a final decision in the Supreme Court before the ordinance ceases to exist, and another, it may be equally obnoxious, is adopted. The San Diego case has been in court now nearly ten years, and the ordinance assailed in that case expired years ago. Therefore, if the company finally establishes the fact that the rates were unreasonable and unjust, as two Judges of the Superior Court have decided, it will be unable, under existing laws, to obtain any relief. It was bound, on penalty of forfeiture of its plant, to furnish the water at the unjust rate imposed upon it. There should be some provision by which, after rates have been declared void, new and just rates shall be fixed at the end of the litigation for the year covered by the ordinance, and then enforced. But the question of the reasonableness of rates is not a State, but a Federal History of the Bench and Bar of California. 139 question. If we look to the decisions of the Federal courts, we find them differing widely from the decisions of the Supreme Court of this State. Most of the cases affecting the question of rates relate to rates of railroad com- panies. To review all of the cases on this important question would extend this paper unnecessarily. Therefore, only a few of the very latest cases bearing on this question will be noticed. The question was before Judge Ross, of the Circuit Court of the United States, in San Diego Land and Town Co. V. National City, 74 Fed Rep., 79. In this case it was held that the present value of the plant should be taken as the basis of fixing rates, but that due regard should be given to the rights of the public and to the cost of mainte- nance of the plant and its depreciation by reason of wear and tear. The court said : "It is obvious, I think, that it must be held, either that the right of judicial interference exists only when the schedule of rates established will fail to secure the owners of the property some compensation or income from their investment (however small), or else that the court must adjudicate, when properly called upon to do so, whether the rates established by the municipal authorities are so manifestly unreasonable as to amount to the taking of property for public use without just compensation. Undoubtedly, every intendment is in favor of the rates as established by the municipal authorities. But as it is firmly established that it is within the scope of the judicial power, and a part of the judicial duty, to inquire whether rates so established operate to deprive the owner of his prop- erty without just compensation, it seems to me that it logically follows, that if the court finds from the evidence produced that they are manifestly unreasonable, it is its duty to so adjudge, and to annul them; for it is plain that if they are manifestly unreasonable, they cannot be just. In the solution of that problem many considerations may enter; among them, the amount of money actually invested. But that is by no means, of itself, controlling, even where the property was at the time fairly worth what it cost. If it has since enhanced in value, those who invested their money in it, like others who invest their money in any other kind of property, are justly entitled to the benefit of the increased value. If, on the other hand, the property has decreased in value, it Is but right that those who invested their money in it. and took the chances of an increase in value, should bear the burden of the decrease. In my judgment, it is the actual value of the property at the time the rates are to be fixed that should form the basis upon which to compute just rates; having, at the same time, due regard to the rights of the public, and to the cost of maintenance of the plant, and its depreciation by reason of wear and tear." It was further held in this case that the fact that the company had borrowed money and was paying interest on it was immaterial. On this point, it was said : "Nor can it make any difference that the complainant, in the construction of its plant and the carrying on of its work, borrowed $300,000 on which it pays interest, and for which, it may be, it issued its bonds. The buyer of such bonds, like the loaner of money on a mortgage upon real estate, does so with his eyes open. The loaner of money on a mortgage knows that conditions may be such aS to increase the value of his security, or they may be such as to decrease its value. He takes the chances that everybody must take who engages in business transactions. The buyer of bonds issued by a water company such as the com- plainant has the like knowledge, and the further knowledge that the law. which everyone is presumed to know, prescribes that the rates to be charged for the 140 History of the Bench and Bar of California. water furnished by the company shall be established and fixed by a special tribunal, subject, as all State laws are, to the paramount provisions of the consti- tution of the United States, among which is one which secures such investors against the fixing of such rates as will operate to deprive him of his property without just compensation." Thus it will be seen that the Circuit Court disagTeed with the Justices of the State court in holding that the court had power to inquire and determine whether the rates in question were reasonable or not, and that the deprecia- tion of the plant from wear and tear should be considered. This case went to the Supreme Court of the United States on appeal. That court in San Diego Land and Town Co. v. National City, 174 U. S., 739, laid down the fol- lowing rules for the determination of the question whether rates are reason- able or not : "The contention of the appellant in the present case is that in ascertaining what are just rates the court should take into cousideration the cost of its plant, the cost per annum of operating the plant, including interest paid on money bor- rowed and reasonably necessary to be used in constructing the same; the annual depreciation of the plant from natural causes resulting from its use ; and a fair profit to the company over and above such charges for its services in supplying water to consumers, either by way of interest on the money it has expended for the public use, or upon some other fair and equitable basis. Undoubtedly, all these matters ought to be taken into consideration, and such weight be given them, when rates are being fixed, as under all the circumstances will be just to the company and to the public. The basis of calculation suggested by the appel- lant is, however, defective in not requiring the real value of the property and the fair value in themselves of the services rendered to be taken into consid- eration. What the company is entitled to demand, in order that it may have just compensation, is a fair return upon the reasonable value of the property at the time it is being used for the public. The property may have cost more than it ought to have cost, and its outstanding bonds for money borrowed and which went into the plant may be in excess of the real value of the property. So that it cannot be said that the amount of such bonds should in every case control the question of rates, although it may be an element in the inquiry as to what is, all the circumstances considered, just both to the company and to the public." Here it is distinctly held that the cost of the plant, the cost per annum of operating the plant, including interest paid on money borrowed and reasonably necessary to be used in constructing the plant, the annual depreciation of the plant from natural causes resulting from its use, the real value of the plant, and the fair value in themselves of the services rendered, should all be taken into account, and a fair return allowed upon the reasonable value of the plant at the time it is being used for the public use. This basis of fixing rates is fair and just, and if fairly lived up to in practice, no injustice could result. But it embodies two elements of uncertainty. Who can arrive, with any degree of certainty, at the present value of a water plant, the greater part of which is underground, and its actual condition beyond ascertainment, and who can arrive at the value of the services to the public? It has never yet been attempted and probably never will be. The only way in wdiich a proper basis can be arrived at is to take the reasonable cost of the plant, which can be easily arrived at. If the construction has been extravagant or unneces- History of the Bench and Bar of California. 141 sarily expensive, the actual cost should not be allowed for, as is said in the last case cited. And this case may reasonably be construed to mean just this. The reasons given for holding that the actual cost, or the outstanding bonds, should not control in all cases, are that "the property may have cost more than it ought to have cost, and its outstanding bonds for money borrowed and which went into the plant, may be in excess of the real value of the property." It must be inferred from this that if the property did not cost more than it ought to have cost and the bonds issued \vere not excessive, the company should have a reasonable return on the cost, sufficient at least to pay the interest on its bonds, and a fair profit to the company in addition, provided the rates necessary to furnish such return would not be unreasonable or oppressive to the public or the consumers taking water from the company. As to what would be the fair value of the services to the public, no rule can be laid down. It might appear that in order to allow the company the interest on its bonds and a fair profit to the stockholders, the rates must necessarily be oppressive. If so, under this decision, which must be taken as finally establishing the law on the subject, the rates could not be upheld. But certainly this element of value of the service to the public is a most uncertain one. As to the interest on the bonds, as shown above. Judge Ross held, in effect, that the bondholders must take their chances on the rise or fall in the value of the property mortgaged. But nevertheless, their right to receive their interest from rates established cannot be overlooked or disregarded. The constitution of the State guarantees that reasonable rates and just com- pensation shall be allowed. Judge Ross says, in the course of his opinion, that the buyer of bonds takes with knowledge of the laws providing for the fixing of rates, "subject to the paramount provisions of the Constitu- tion of the United States, among zvhich is one which secures such investors against the -fixing of such rates as zvill operate to deprive him of his property without just compensation/' Therefore the bondholders have an interest in the establishment of just rates that they may protect. Consequently, it is held that a trustee of the bondholders may maintain suit to declare void rates that are unreasonable and will not secure the payment of their interest. Mercantile Trust Co. v. Texas & Pacific Ry. Co., 51 Fed Rep., 529; Reagan v. Farmers' Loan and Trust Co., 154 U. S., 362; Consolidated Water Co. v. City of San Diego, 84 Fed. Rep., 369; Benson v. City of San Diego, 100 Fed. Rep., 158. It follows that the questioil of the amount of the bonded indebtedness is not immaterial, as held by the State Supreme Court, but is an element, as directly held by the Supreme Court of the United States, to be taken into account in fixing the rates. In fixing rates, the board of supervisors of a city and county or governing body of a citv or town, acts independently of the mayor, and he has no power to veto an ordinance fixing rates. 142 History of the Bench and Bar of California. Jacobs V. Board of Supervisors, loo Cal., 121. The distinction between water appropriated for sale, rental, or distribution, and that appropriated for private use, should be remembered in this connection. Water may be appropriated for the private use of any number of persons. And a corporation may appropriate it for the use of its stockholders. It is only where the water is appropriated for sale, rental, or distribution that it is made a public use and within the provisions of the constitution. McFadden v. Board of Supervisors, 74 Cal., 571. And in this connection attention should be called to the case of Merrill v. South Side Irrigation Co., 112 Cal, 426. This case gives a perverted mean- ing to the word "appropriated," that is unfortunate. The word as applied to the acquisition and use of water has a technical and well understood mean- ing, or had until this case was decided. It included whatever was necessary to the diversion of running water and the application of it to such beneficial use as would entitle the appropriator to its continued use. In this case, the court construed it to include the application of the water to the use mentioned in the constitution. The court says : "Appellant contends that the word 'appropriated,' as used hi the section of the constitution quoted above, only applies to water appropriated from streams upon the public lands, and has no application to water acquired by other means than an appropriation under the Civil Code. This construction is too narrow, and, we think, does violence to the evident intent of the framers of the constitution. There is no doubt but that in a broad sense to appropriate is to make one's own, to make it a subject of property, and it is often used in the sense of denot- ing the acquisition of property, and a right of exclusive enjoyment in those things which before were without an owner, or were publici juris. But it is also used in the sense of prescribing property or money to a par- ticular use, as to appropriate money to a designated purpose ; to appropriate land to grazing, or fruit, or other purpose. It is also used in the sense of 'to distribute.' (Anderson's Law Dictionary.) When water is designated, set apart, and devoted to purposes of sale, rental, or distribution, it is appropriated to those uses, or some of them, and becomes subject to the public use declared by the constitution, without reference to the mode of its acquisition." The constitution says water "appropriated for sale, rental, or distribution." The court holds that it means "appropriated to sale, rental or distribution." It was a stretching and distortion of the meaning of the word for the laud- able purpose of preventing monopolies, but this sort of confusion is to be regretted, nevertheless. FIXING OF RATES BY BOARDS OF SUPERVISORS FOR WATER SUPPLIED OUTSIDE OF CITIES AND TOWNS. There are some quite material differences between the establishment of rates in cities and towns and in counties outside of such cities and towns, In cities and towns, the rates must, by the terms of the constitution, be fixed annually. In the outside territory this is not necessary. As we shall see History of the Bench and Bar of California. 143 further along, until the board of supervisors estabHshes the rates, the com- pany furnishing the water may fix and change its own rates. If the board of supervisors once establishes the rates, they must stand for not less than one year, when they may be changed or abrogated. In cities and towns, there is no amount fixed by law that must be returned by the rates. In counties the statute provides that the rates must be so fixed as to return not less than six nor more than eighteen per cent, per annum on the value of the plant. In establishing purely domestic rates in cities and towns, the question of water rights and the effect upon the rates to be paid for the acquisition of a water right by a consumer from the company, or the nature and general effect of such water rights, does not arise. But in fixing rates for irrigation, these questions have given rise to much controversy and contrariety of opinion. Attention will first be given to the question of fixing rates, after which the question of water rights, the power of the company to sell them, and the further question whether the price for a water right or the annual rates to be paid for the water can be fixed or controlled by the contract of the company and its consumers. (a) Of the Fixing of Rates. Much that has been said as to the fixing of rates by city and town authori- ties is applicable, also, to the fixing of rates for the county by the board of supervisors. The constitution. Article XIV, is applicable in both cases, but in a different way. In case of cities and towns, as we have seen, the consti- tution itself requires that the rates shall be fixed in February of each year. So far as it applies to the fixing of rates. Section 2 of the article of the consti- tution is alone applicable to rates to be fixed in counties. That section pro- vides : "The right to collect rates or compensation for the use of water supplied to any county, city and county, or town, or the inhabitants thereof, is a franchise, and cannot be exercised except by authority of and in the manner prescribed by law." Const. Cal, Art. XIV, Sec. 2. Prior to the adoption of the constitution, the statute of 1862, above referred to, had been enacted providing for the fixing of the rates by the companies furnishing the water, but subject to regulation by boards of super- visors and providing that the rates should not be reduced ''so low as to yield to the stockholders less than one and one-half per cent, per month iif>on the capital actually invested." Stat. 1862, p. 541, Sec. 3. Later, the Civil Code was enacted. One of its sections provitles tlirrt where water is furnished by a corporation to irrigate lands the right to the flow and use of the water shall remain a perpetual easement to the land "a/ such rates and terms as may be established by said corporation in /pursuance of lazv.' Civil Code, Sec. 552. 144 History of the Bench and Bar of California. Here again the right to fix the rates was vested in the corporation fur- nishing the water. Subsequently, in 1885, a statute was enacted providing for the fixing of rates by boards of supervisors and establishing a course of procedure. Stat. 1885, p. 95. Section i of this Act provides that the use of water is a public use, and the right to collect compensation therefor a franchise, as provided in the constitution, and when furnished outside of cities and towns, "shall be regu- lated and controlled, in the counties of this State, by the several boards of supervisors thereof, in the manner prescribed in this Act." Section 2 makes it the duty of the board of supervisors to fix and regulate maximum rates on notice and petition as provided in the next section. Section 3 provides for a petition by twenty-five inhabitants and tax-payers for the fixing of the rates and notice of not less than four weeks of the hearing thereof. By section 4 the board is required, on the hearing, to estimate the value of the property of the company actually used and useful in supplying the water, and also its annual reasonable expenses, including the cost of repairs, man- agement and operating such works. Section 5 provides that the board may fix different rates for different pur- poses, such as mining, irrigation, manufactures and domestic use, but that the rates for each purpose shall he equal and uniform. It is further provided in this section as follows : — "Said Boards of Supervisors, in fixing such rates, shall, as near as may be, so adjust them that the net annual receipts and profits thereof to the said per- sons, companies, associations, and corporations so furnishing such water to such inhabitants shall be not less than six nor more than eighteen per cent upon the said value of the canals, ditches, flumes, chutes, and all other property actually used and useful to the appropriation and furnishing of such water of each of such persons, companies, associations, and corporations ; but in estimating such net receipts and profits, the cost of any extensions, enlargements, or other perma- nent improvements of such water rights or waterworks shall not be included as part of the said expenses of management, repairs, and operating of such works, but when accomplished, may and shall be included in the present cost and cash value of such work. In fixing said rates, within the limits aforesaid, at which water shall be so furnished as to each of such persons, companies, asso- ciations, and corporations, each of said Board of Supervisors may likewise take into estimation any and all other facts, circumstances, and conditions pertinent thereto, to the end and purpose that said rates shall be equal, reasonable, and just, both to such persons, companies, associations, and corporations, and to said inhabitants." And after providing that the rates, when so fixed by the board, shall be binding and conclusive for not less than one year next after their establish- micnt and until established anew or abrogated by the board, the section con- tains this further provision : "And until such rates shall be so established, or after they shall have been abrogated by said Board of Supervisors as in this act provided, the actual rates History of the Bench and Bar of California. 145 established and collected by each of the persons, companies, associations and cor- porations now furnishing or that shall hereafter furnish appropriated waters for sale, rental, or distribution to the inhabitants of any of the counties in this State shall be deemed and accepted as the legally established rates thereof." Section 6 of the Act provides for the estabhshment anew or abrogation of the rates fixed by the board, to take effect not less than one year next after their first estabhshment, and that this may be brought about either at the instance of twenty-five inhabitants, as provided for the fixing of rates in the first instance, or upon the petition of the corporation furnishing the water, and upon Hke notice as provided for the fixing of rates originally; and it is provided that all water rates fixed as in said section provided shall be in force and effect until established anew or abrogated as provided in the Act. By section 7, it is required that a record be made of the establishment of the rates, and that the same be published the same as required for the publication or posting of the petitions and notices. Section 8 provides that all companies or persons furnishing water for sale, rental or distribution shall furnish the same at rates not exceeding the established rates fixed by the board. Section 9 provides a penalty for the collection of a higher rate than that fixed by the board of supervisors. Section 10 provides that every corporation, company or person furnishing water in a county where rates have been so fixed may be compelled to supply the water at such rates to the extent of the actual supply of such appropriated waters of such person, company, association or corporation for such pur- poses; and if failure shall be made to supply the water on demand to the extent of his or its reasonable ability so to do, the company, association or person is made liable in damages to the extent of the actual injury sustained by the person or parties making demand for the water and tender of the rates. Section 11 of the Act confers upon the company the right to condemn rights of way for carrying the water. Taking the provisions of the constitution that the right to collect com- pensation for water is a franchise to be exercised as prescribed l)y law. this statute of 1885 prescribes the manner of fixing the rates and fixes the rights and obligations of the corporation supplying the water and its consumers. Litigation has arisen over the provisions of this statute. Tn the case of Lanning v. Osborne, 76 Fed. Rep., 319. the complainant. Lanning. as receiver of the San Diego Land and Town Company, gave notice to the consumers of water under the system of said company of his intention to increase the rates for irrigation from $3.50 to $7.00 per acre. The consumers denied his right to increase or in any way change the rates already fixed, and established by the company. He brought an action in the United States Circuit Court to liave his right to increase the rate established, and to prevent a multiplicity of suits intended to compel the company to supply the water at the old rate. The case was strongly contested. It was finally held by Judge Ross that until 146 History of the Bench and Bar of California. action was taken by the board of supervisors in establishing rates, the com- pany had the right and power, under the statute of 1885, to estabhsh and re-estabhsh its own rates ; that if the rates fixed by the company were unrea- sonable or unsatisfactory to the takers of water, their remedy was to apply to the board of supervisors to fix the rates as provided by law, and that the court had no jurisdiction to inquire into the reasonableness of the rates until action taken by the board of supervisors. This case also involved other im- portant questions relating to water rights and the power of the company to deal with them, which will be considered further on. The case was appealed to the Supreme Court of the United States, and the conclusions reached by Judge Ross, above stated, were by that court affirmed. Osborne v. San Diego Land and Town Co. — U. S. (not yet reported). So it mav be taken as the settled construction of our State constitution and the statute of 1885, passed in pursuance of it, that a corporation furnish- ing water to the public has the right to fix and change its own annual rates until such rates are fixed by the board of supervisors, as prescribed by the statute, and that the only remedy of consumers taking water from the com- pany, if the rates are not satisfactory, is to apply to the board of supervisors for the establishment of such rates. In fixing rates by the board of supervisors, they must be governed by the statute which provides that the rates must be so fixed "that the net annual receipts and profits thereof shall be not less than six nor more than eighteen per cent, upon the value of the canals, ditches, flumes, chutes, and all other property actually used and useful to the ap])ropriation and furnishing of such water." It follows that when a court is called upon to determine whether rates fixed by the board of supervisors are reasonable or not, the standard fixed by the statute must control, and if the rates will not return at least six per cent, net on the value of the plant, they are, by the express terms of the statute, unreasonable. And, doubtless, it will he held in this case, as in the fixing of rates in cities and towns, that the present value of the plant must be taken as the basis upon which return should be made. (b) Of the Water Right and the Power of the Company to Sell the Same. The question as to the exact right or ownership acquired by an appro- priator of water for sale, rental or distribution, under the provisions of our constitution, has not been definitely settled by any adjudicated case. The constitution does not declare, as in Colorado, that the waters of flowing streams belong to the public. It declares: "The use of all water now appropriated, or that may hereafter be appro- priated for sale, rental, or distribution, is hereby declared to be a public use. and subject to the regulation and control of the State m the manner provided by law." 1 History of the Bench and Bar of California. 147 Const, Art. XIV, Sec. i. And further : "The right to collect rates or compensation for the use of water supplied to any county, city and county, or town or the inhabitants thereof is a franchise and cannot be exercised except by authority of and in the manner prescribed by law." Const., Art. XIV, Sec. 2. The statute of the State gives the right of appropriation. That such appropriation may be made by a corporation or individual for sale or rental to others is expressly recognized by the constitution. That by the appropria- tion of water the appropriator becomes the owner of the right to use it and to sell and convey that right to another has been the undisputed and undoubted law of this State from the beginning. Hence, unless the constitution, or some statute enacted in pursuance of it, has established a different rule in respect of appropriators for sale, rental or distribution, they must be regarded as having become the owners of the right to the use of the water appropriated. But there is this difference that must not be overlooked. In order to con- stitute a complete and valid appropriation, two things must concur, viz., the diversion of the water from the stream and its application to a beneficial use. In the case of an appropriation for private use, the diversion is made by and the application made to a beneficial use by the same person, thereby vesting in him the complete title to the right to use the water. This is simple enough, and presents no difficulties. But in the case of the appropriation for use by the public, the diversion is made by the corporation intending to sell and distribute the water, which is one of the acts necessary to acquire the right to the use of the water, and the application of the water to a beneficial use must be made by the party to whom the water is furnished, and, if furnished for irrigation, becomes appurtenant to his land, and belongs to him. Or the company may also be the owner of land and may apply the water to the land and afterwards convey both the land and the water right to a third party, which, as we shall see, carries with it the obligation of the company to supply the water by and through its system. The question has arisen, uiuler these circumstances, whether the corporation can sell to another the right to the use of water diverted and stored by it, or make any contract in respect of such water right, or whether, under the constitution and laws of this State, the company must supply the water on demand and upon payment or. tender of the annual rates, so-called, fixed as provided by law, without other con- sideration. There is great diversity of opinion on this subject. It is an interesting and important question. Section 552 of the Civil Code is as follows: "Whenever any corporation, organized under the laws of this State, fur- nishes water to irrigate lands which said corporation has sold, the right to the flow and use of said water is and shall remain a perpetual casement to the land so sold, at such rates and terms as may be establislied hy said corporation in pursuance of law. And whenever any person who is cultivating laufl, on the 148 History of the Bench and Bar of California. line and within the flow of any ditch owned by such corporation, has been furnished water by it, with which to irrigate his land, such person shall be entitled to the continued use of said water, upon the same terms as those who have purchased their land of the corporation." See Price v. Riverside L. & T. Co., 56 Cal, 431, 441. This section defines a water right such as a company deaHng with water may vest in a consumer to whom it supplies water for irrigation. It is the right to "the perpetual easement of the flow of the water at such rates and terms as may l)e established by said corporation in pursuance of law." This right has not been taken away or changed by the constitution, subsequently adopted, or by any law enacted in pursuance of it, except that the right of the State to regulate the sale and distribution of the water is declared by the constitution, and the manner of fixing the rates and compensation at which the water shall be furnished has been prescribed by the statute of 1885. Therefore, the only change made is that now the board of supervisors may, on petition of twenty-five citizens, fix and establish the rates to be charged for the water furnished, while, under section 552, the right to fix the rates was in the company. And, as we have shown, the right to fix its own rates still exists in the company, until action is taken by the board of supervisors as provided by law. Stat. 1885, p. 96, Sec. 5; Lanning v. Osborne, 76 Fed Rep., 319; Osborne v. San Diego Land and Town Co. — U. S. — (May 14. 1900, unreported.) But the question remains, has the company such a water right in the water it has acquired the right to divert and sell, as it may and has the >gal right to sell to one owning land under its system. And here we must distinguish between a water right, or the preferred right to the use of the water, and the annual rates to be paid for the water used. This distinction is made by section 552, which provides how the preferred right or easement of the right to the use of the water may be vested in the land-owner and that his right is subject to his payment of the rates fixed by the company as provided by law. The distinction has been recognized, practically, by all water companies, and parties dealing with them, by contracts made between them for such water rights ; millions of dollars have been paid, and agreed to be paid, for water rights of this kind, and thousands of acres of land have obtained this valuable right by such contracts voluntarily, gladly, bought and paid for. The water right made appurtenant to land in the southern part of the State doubles, many times quadruples, the value of the land, or even more. The mere vested right to the use of the water at the rates fixed as provided by law is in almost all cases worth much more than the full value of the land before the right was obtained. In most cases, this value is added to the lands by the expenditure of large sums of money in diverting and storing the storm waters of the winter, and preparing the facilities for History of the Bench and Bar of California. 149 distributing and supplying it to the lands within its reach. If the company owns land, and, after supplying the water to it, sells it, it charges and receives a largely enhanced price for the land. This is nothing more than selling a water right with the land. Tf it supplies water to the lands of another, it enhances the value of his land in the same way, and to precisely the same extent. So the water right is valuable property. When the land owner acquires it, he can, as all authorities agree, sell his water right as he can sell his land. This being so, why may not the company that has brought the water right into existence, sell the same water right to him? The Supreme Court of this State has recognized the right of companies of this kind to contract and sell such water rights and collect a consideration therefor, by enforcing such contracts. Fresno Canal and Irr. Co. v. Dunbar, 80 Cal. 530; Fresno Canal and Irr. Co. v. Rowell, 80 Cal. 114; Clyne v. Benicia Water Co., 100 Cal. 310; San Diego Flume- Co. v. Chase, 87 Cal. 561 ; Balfour v. Fresno Canal Co., 109 Cal. 221 ; Fairbanks v. Rollins, 54 Pac. Rep. 79. Indeed, the validity of such contracts seems never to have been doubted or questioned until certain decisions were rendered by Judge Ross, of the Circuit Court of the United States, which we now proceed to notice. In San Diego Land and Town Company v. National City, 74 Fed. Rep. 79, the Company was seeking to set aside an ordinance fixing rates for National City on the ground that the rates were unreasonable. Amongst other things, it was claimed by the company that the board of trustees should, in fixing the rates, have allowed a reasonable sum to be charged for a water right, for irrigation, because, if it once voluntarily furnished water to lands, it thereby, by force of Section 552, attached to said land, as a perpetual easement, the right to the flow and use of the water; and if compelled by the ordinance to so attach the easement to the land, it was therd^y compelled to give away such water right or easement. Judge Ross, in presenting his views on this important question, expressed himself with his accustomed force and clearness. He says, (p. 86) : "One of the objects of the present suit is to obtain a decree estabishing the validity of that claim of the complainant to exact a sum of money, in addi- tion to an annual charge, as a condition on which alone the complainant will furnish consumers of water for irrigation purposes, other than to those it had furnished it for such purposes prior to December 18, 1892. And the contest that arose between the consumers and the company over this charge for a so-called 'water right,' and the refusal of the municipal atithorities of National City to allow that charge in respect to acreage property within the city limits, is one of the principal causes of the present suit. It does not change the essence of the thing for which the complai4iant demands a sum of money to call it a 'water right.' or to say, as it docs, Ihat the charge is imposed for the purpose of reimbursing complainant in part for the outlay to which it has been sub- jected. It is denianding a sum of money for doing what the constitution and laws of California authorized it to appropriate water within its limits, conferred 150 History of the Bench and Bar of California. upon it the great power of eminent domain, and the franchise to distribute and sell the water so appropriated, not only to those needing it for purposes of irri- gation, but also to the cities and towns, and their inhabitants, within its flow, for which it was given the right to charge rates to be established by law, and nothing else. No authority can anywhere be found for any charge for the so- called 'water right.' The State permitted the water in question to be appropri- ated for distribution and sale for purposes of irrigation, and for domestic and other beneficial uses; conferring upon the appropriator the great powers men- tioned, and compensating it for its outlay by the fixed annual rates. The com- plainant as not obliged to accept the benefits conferred by the constitution and laws of California, it accepted them charged with the corresponding bur- den. Appropriating, as it did, the water in question, for distribution and sale, it thereupon became, according to the express declaration of the constitution, charged with a public use. 'Whenever,' said the Supreme Court of California in McCrary v. Beaudry, 67 Cal. 120, 121, 7 Pac. 264, 'water is appropriated for dis- tribution and sale, the public has a right to use it ; that is, each member of the community, by paying the rate fixed for supplying it, has a right to use a reason- able quantity of it in a reasonable manner. Water appropriated for distribu- tion and sale is ipso facto devoted to a public use, which is inconsistent with the right of the person so appropriating it to exercise the same control over it that he might have exercised if he had never so appropriated it.' To the same effect is People v. Stephens, 62 Cal. 209; Price v. Irrigating Co., 56 Cal. 431." But, after all, the learned Judge begs the question. He assumes the very matter in controversy, viz. : that the State granted to the corporation the privilege of appropriating the waters of its streams, and of resorting to the right of eminent domain, if necessary, to carry out its objects, on the condi- tion that it accept the aiinual rates fixed for zuater supplied and waived all right to charge more, either for the water right or in any other zvay. If Judge Ross is right in his premises, his conclusion is unquestionably right and his reasoning unanswerable. But is he right in his assumption that the constitution takes away from the appropriator for sale, rental and dis- tribution, the right to sell the water right it has appropriated? Confes- sedly, it is a valuable right, and one that, if the hands of a private indi- vidual, is the subject of sale and transfer. Is there anything in the con- stitution that declares, expressly or by implication, that the right is any the less valuable, or less the subject of sale, because the appropriation was made for sale, rental and distribution? The opinion does not say It is said : "No authority can anywhere be found for any charge for the so-called 'water right.' '' This, it is believed, was a mistake. The decisions of the State Supreme Court above cited, are authority for a charge for the so-called water right. But, after all, that is not the question. No one will presume to deny, at the present day, that this so-called water right is valuable property. Unless there is some law against the sale of property, it is, of course, saleable. Therefore, the inquiry should have been, not whether there was any authority to be found for a charge for such property, but whether there was any law or decided case denying to such a company the power to sell, for a consideration, its own property. If not, its rights must be the same, in this respect, as those of other property owners. This case was appealed to the Supreme Court of the United States, but i History of the Bench and Bar of California. 151 this question was not decided by that Court, it being held that a decision of the question was not necessary to a decision of the case. The Court said : "One of the questions pressed upon our consideration is whether the ordi- nance of the city should have expressly allowed the appellant to charge for what is called a 'water right.' That right, as defined by appellant's counsel, is one 'to the continued and perpetual use of the water upon the land to which it has been once supplied upon payment of rates therefor established by the company.' In the opinion of the Circuit Court it is said that 'no authority can anywhere be found for any charge for the so-called 'water right.' This view is controverted by appel- lant, and cases are cited which, it is contended, show that the broad declaration of the Circuit Court cannot be sustained. Fresno Canal & Irrig. Co. v. Rowell, 8d Cal. 114; Fresno Canal & Irrig. Co. v. Dunbar, 80 Cal. 530; San Diego Flume Co. v. Chase, 87 Cal. 561; Clyne v. Benicia Water Co., 100 Cal. 310; San Diego Flume Co. v. Souther, (C. C. A.), 90 Fed. Rep. 164. We are of opinion that it is not necessary to the determination of the pres- ent case that this question should be decided. We are dealing here with an ordi- nance fixing rates or compensation to be collected within a given year, for the use of water supplied to a city and its inhabitants or to any corporation, com- pany, or person doing business or using water within the limits of that city. In our judgment the defendant correctly says in its answer that the laws of the State have not conferred upon it or its board of trustees the power to prescribe, by ordinance or otherwise, that the purchase and payment for so-called 'water rights' should be a condition to the exercise of the right of consumers to use any water appropriated for irrigation or aflFected with a public use. The only issue properly to be determined by a final decree in this cause is whether the ordinance in question fixing rates for water supplied for use within the city is to be stricken down as confiscatory by its necessary operation, and therefore in violation of the constitution of the United States. If the ordinance, considered in itself, and as applicable to water used within the city, is not open to any such objection, that disposes of the case, so far as any rights of the appellant may be aflfected by the action of the defendant. The appellant asks, among other things, that it be decreed to be entitled to charge and collect for 'water rights' at reasonable rates as a condition upon which it will furnish water for the purposes of irrigation, notwithstanding the rates fixed by the defendant's board of trustees, for water sold and furnished within the city. That is a question wholly apart from the inquiry as to the validity under the constitution and laws of the State. Counsel for appellant, while insisting that the Circuit Court erred in saying that there was no such thing as a 'water right,' says : 'The constitution of the State has nothing whatever to do with a water right or the price that shall be paid for it. It simply provides for fix- ing the annual rental to be paid for the water furnished and used. When one obtains his water right by purcha.se or otherwise, he has a right to demand that the water shall be furnished to his lands at the price fixed, as provided by law, and that the company shall exact no more. Rut he must first acquire the right to have the water on such terms. Whether in fixing the annual rates to be charged, the body authorized to fix them can take into account the amount that has been received by the company for water rights, is another question, and one that is not presented in this case. Nor is any question raised as to what would be a reasonable amount to exact for a water right, or whether the courts can interfere to determine what is a reasonable amount to charge therefor.' These reasons are sufficient to sustain the conclusion already announced, namely, that the present case docs not require or admit of a decree declaring that the appellant may, in addition to the rates established by the ordinance, chajge for what is called a 'water right' as defined by it. It will be time enough to decide such a point when a case actually arises between the appellant and 152 History of the Bench and Bar of California. some person or corporation involving the question whether the former may require, as a condition of its furnishing water within the limits of the city on the terms prescribed by the defendant's ordinance, that it be also paid for what is called a water right.' " San Diego Land and Town Co. v. National City, 174 U. S. 739, 756. It will be seen that the question in this case was whether a water company could exact a payment for a water right, as a condition upon which it would supply water, and against the will of the party demanding the water, and not whether the company had the legal right to contract for the sale of the water right and whether the parties, having voluntarily contracted, are legally bound by such contract. But the question has been before Judge Ross in later cases, involving, directly, the question whether any such contract can be made, and he has held in unqualified terms that no such contract can be legally made. Lanning v. Osborne, 76 Fed. Rep. 319, was one of these cases. This case involved the right of a water company, or its receiver, to fix its own rates in the absence of action by the board of supervisors. In that connection it was considered above. But the question of the effect of contracts for the sale of water rights was raised and it was decided that all contracts of that kind were void. The question was fully and ably treated in the opinion. It is said in the course of the opinion that two of the cases decided by the State Supreme Court as recognizing the validity of such contracts could not be so construed for the reason that it did not appear in either of the cases that the water the company undertook to sell was appropriated under or subject to the constitution and laws relating to water appropriated for sale, rental or distribution. In this the learned Judge was in error. In the case of Fresno Canal and Irr. Co. v. Dunbar, 80 Cal. 530, it was said, in the beginning of the opinion : "Tlie respondent, the plaintiff in the court below, being a corporation en- gaged in diverting and supplying water for irrigation, entered into a contract with one Roeding, who was then the owner of a certain tract of land, by which the respondent sold to said Roeding, for the sum of twelve hundred dollars, a water right for said real estate, and in and by said contract 'grants, bargains, sells and conveys to the party of the second part, from the main canal of the party of the first part, or from a branch thereof, all the water that may be required, not exceeding at any time four cubic feet per second, for the purpose of irrigating said lands.' " This showed clearly that the company was dealing with water in such way as to bring it within the provisions of the constitution and laws referred to. But, if there were any doubt as to these cases, there can be none that some of the other cases decided by the State Court, and which were not then brought to the attention of Judge Ross, do show on their face that the court under- stood, perfectly, that it was dealing with a contract for a water right made by a company that had appropriated it for sale, rental and distribution, and so amenable to the provisions of the constitution. These cases have been cited above. It should be said, however, in justice to Judge Ross, that these later I History of the Bench and Bar of California. 153 cases were not called to his attention, and further, that in none of the cases was the question directly raised as to the validity of such contracts or the power of a company appropriating water for sale, rental or distribution to make such contracts. Indeed, it may be said that up to the first decision rendered by Judge Ross, declaring such contracts to be invalid, no question of their validity had ever been suggested in any proceeding in court, and their validity was generally, if not universally, recognized and acted upon. But, in the case under consideration, the learned Judge supported his views by quotations from decided cases in Colorado, notably, Wheeler v. Irrigation Co., 17 Pac. Rep. 487. And the authorities cited fully sustain the conclusion reached by him, if our constitution and laws relating to the appropriation of the waters of running streams, are the same in legal effect as those of Col- orado. But they differ very materially — so much so, that it is believed that if the cases cited are correctly decided, they are not in point in this State. The Colorado constitution provides : "The water of everj' natural stream not heretofore appropriated within the State of Colorado is hereby declared to be the property of the public, and the same is dedicated to the use of the people of the state, subject to appropria- tion as hereinafter provided." Art. XVI, Sec. 5. There is an obvious and material difference between that provision and the one in our constitution relating to the same subject. Our constitution does not declare the waters of natural streams to belong to the public or dedicate the same to the use of the public. When the constitution was adopted, the code of this state authorized the appropriation of the waters of all natural streams without limit, except that it must be for a useful purpose. This right was in no way interfered with by the constitution, except that it provides that when appropriated for sale, rental, or distribution, it is a public use, and subject to state regulation and control. That is to say, when water is appro- priated for such purposes, the State may regulate and control the manner of supplying the water and the price to be charged for it. With this single limitation, the ownership and interest in the water is the same, as the result of an appropriation of it, as that of any other appropriator. The State can • no more interfere with or deprive such an appropriator of water or its right to the use of it, further than to exercise a proper regulation and control over its use in supplying the water to others, than it can in case of an appropriation for private use. It is upon this very ground that it has been uniformly held that to impose what the court sometimes call confiscatory rates is a violation of the provision of the constitution of the United States, against taking property without due process of law or just compensation. Such decisions can rest only on the acknowledgment of ownersliip in the company dealing with the water. But it is enough to say that our constitution manifests no intention or purpose of taking away or limiting the ownership in the water or to do more than preserve to the State the right to regulate and control its use. And 154 History of the Bench and Bar of California. this is because it is a "public use." But it was as much a pubHc use before the adoption of the constitution as it is now. The constitution simply declares what was the law before. It is a public use, the same as the exercise of its franchise to carry passengers and freight, by a railroad company, is a public use. And the right to regulate and control its use of such rights is the same f| in one case as in the other, and for precisely the same reason, and on the same principle. And who would say that because a railroad company is exercising a public use. its railroad or rolling stock or its earnings are public property, and belong to the people? The effect of the Colorado constitution, as com- pared with one like our own, was considered by the Supreme Court of Idaho in Willerding v. Green, 45 Pac. Rep. 134. in which it was said : "The marked distinction between the provisions of the constitution of Colo- rado and that of Idaho will be apparent upon a very slight inspection of the two. The Colorado constitution is prospective. It makes provision and lays down rules that 'The water of every natural stream not heretofore appropri- ated w'ithin the State of Colorado, is hereby declared to be the property of the public,' etc. Prior to the adoption of this constitutional provision, the right of private persons to acquire property in natural streams through appropria- tion had been recognized in Colorado, as it had been throughout the Pacific coast; but the character of this right was changed by the constitutional pro- vision above quoted, and thereafter the water of such streams became and was 'the property of the public' Compare section 5 of article 16 of the constitution of Colorado with section i of article 15 of the Idaho constitution, which is as follows : 'The use of all waters now appropriated, or that may hereafter be ap- propriated for sale, rental, or distribution, also of all water originally appropri- ated for private use, but which after such appropriation has heretofore been, or may hereafter be sold, rented or distributed, is hereby declared to be a public use, and subject to the regulation and control of the State in the manner pre- scribed by law.' The distinction between the two provisions, it seems to me, is too palpable to require elucidation or warrant discussion. The Colorado con- stitutional provision recognizes the previous existence of private property rights in the water of natural streams, but prohibits the acquisition of such rights in the future. The Idaho constitution does not pretend or assume to control or inter- fere with private property rights in such waters, but declares the use of all such waters, whether theretofore or thereafter appropriated, a public use, and under the control of the State. The doctrine of the Colorado court, that the canal or ditch owner is a mere 'common carrier,' could not, certainly, be predi- cated upon the provisions of the Idaho constitution. That it was the purpose and intention of the Idaho constitution to deal only with the 'use' of water, and not with the property rights of appropriators therein, is. I think, further evi- denced by the including within its provisions 'all water originally appropriated for private use but which after such appropriation has heretofore been, or may hereafter be sold, rented, or distributed.' Tlie sale, renting, and distributing of the water is a dedication, and brings its use under the control of the State, but it in no sense destroys or abrogates the property rights of the appropriator there- in." And this language was used in commenting upon \\'heeler v. Irrigation Company, cited by Judge Ross as supporting his view. It would seem from what has been said that there is nothing in our consti- tution, as there is in the constitution of Colorado, that affects the ownership or rights of a water company in, or prevents it from contracting for, the sale of History of the Bench and Bar of California. 155 a water right. But this does not wholly dispose of the question. The consti- tution does declare the use of the water to be a public use, and that the right to collect rates or compensation for the use of the water is a franchise, and "cannot he exercised except by authority of and in the manner prescribed by law." Obviously, the constitution does not, itself, take away the right of the company to contract for the sale of a water right. But it is just as obvious that it does vest the power to do so in the legislature. And if the legislature has done this thing, it is just as binding as if it had been done by the con^ stitution. We shall see, when we come to consider the question of annual rate.s, that the legislature has taken away the power of the company to fix such rates by contract. And unless a distinction can be made between payment for a water right and the payment of annual rates for water used, I am firmly convinced that no charge can be legally made for such right. If, in other words, the rate fixed as provided by law, whether by the company or by the board of supervisors, is the only charge that can be made, then it is manifest that no charge of a different sum can be made in advance of supplying the water for the preferred right to its use, or the water right. But here the writer is not in accord with other lawyers in this State. As a rule, lawyers take one of two grounds, viz. : that the whole matter of compensation is open to contract be- tween the parties concerned, both for water rights and annual rates, or that no valid contract can be made for compensation or rates for either. The effort will be made, further along, to show that the first of these positions cannot by any possibility be maintained. In this connection, reasons will be given why the second is equally erroneous. The legislature has by the statute of 1885 provided how "rates" shall be established. Stat. 1885, p. 95. It will be seen that it is confined to the fixing n\ "maximum rates.*' Is the preferred and perpetual right to have the water at the rates so fixed prop- erty, and subject to sale? If it is, there is no law in this State to prevent such sale. That it has been regarded in practice as a valuable property right and made the subject of barter and sale, no one will presume to deny. That it is regarded as a valuable right by the law-making powers of the State is evi- denced by the fact that it is secured to the land owners perpetually by section 552 of the Civil Code, and is made more valuable by the provisions of the constitution, and of the statute of 1885, by which the owner of the right is protected from the imposition by the company of unreasonable rates. Now, let us see by the actual experience oi the comi)any in dealing with water, whether this water right is (M" is not a valuable and salable commodity. We will take the case of the San Diego Land .md Town Company, (ho party interested in the litigation in which the decisions of Judge Ross are rendered, as an example and illustration. That company was the owner of a large body of land in San Diego countv, known as the National Ranch. It was what is 156 History of the Bench and Bar of California. known in this semi-arid region as "dry" land ; that is, crops and fruit could not be grown upon it without irrigation. This dry land w^as w^orth from twenty- five to fifty dollars an acre. The company appropriated the waters of the Sweet Water River and constructed a dam, reservoir and distributing system, at a cost of something over a million dollars, and connected the system with its own and other lands. It sold the land, with water, for three hundred dollars an acre and upwards, and it was easily worth that sum. Without water it was worth fifty dollars. Now, what was it that added two hundred and fifty dollars an acre to the value of the land ? It was the water right, and nothing else. This water right had been provided by the expenditure of over a million dollars by the company. According to the decision of Judge Ross, the company had no power to sell its land for this advanced sum, because it w^as charging for a "so-called water-right," and the constitution forbids it. But there is nothing in the constitution or any statute that forbids the sale of a water right with the land, and if such a doctrine is engrafted upon the laws of this State by judicial legislation, the broad acres of Southern California may as well be turned back into sheep pastures, for no corporation or individual can possibly develop and supply water in the southern part of the State for expensive irri- gation and storage works necessary to store and supply water, under such a construction of the law. Section 552 contains a second clause wdiich provides that "whenever any person in cultivating land on the line and within the flow of any ditch owned by such corporation has been furnished water bv it with which to irrigate his land, such person shall be entitled to the continued use of said water upon the same terms as those who have purchased the land of the coi-poration." That is to say, when water is furnished to the lands of another not sold by the company, it vests in the owaier of the land a water right , or the right to the perpetual use of the water as an easement and ap- purtenant to the land. Take the case of the San Diego Land and Town Com- pany again. By appropriating and storing the water, and the expenditure of over a million dollars therefor, it converted its own land from "dry" land worth fifty dollars an acre to "irrigated" land, or land with water right attached, worth three hundred dollars an acre, and it sold readily for that, and in some cases for much more. By appropriating this water and furnishing the facili- ties for storing and delivering it, the company is prepared to convert the dry land of other owners worth fifty dollars an acre, into irrigated land, or land with water, worth three hundred dollars an acre. Must the company give away this water right to other land owners, or has it the right to charge for it? Judge Ross holds that the company must furnish the water for the asking, and thereby vest the land with a water right worth two hundred and fifty dollars an acre, but that it cannot charge for it; he says, because the constitu- tion forbids it. But does the constitution forbid it? There seems to be nothing in the constitution that can reasonably be construed to have this effect by im- plication, and certainly it contains no express provision on the subject, and the History of the Bench and Bar of California. 157 learning and industry of Judge Ross and of counsel interested in the case fail to find any such inhibition in the constitution or in any State statute. It is maintained that the constitution makes all water appropriated for sale, rental or distribution a public use, and subject to the regulation and control of the State in the manner to be prescribed by law. So it does. But it has never been prescribed by law that a water company shall give away its water rights, or that it should not be allowed to charge any compensation therefor. When the constitution was adopted, Section 552 was in force, which allowed the company to fix its own rates for supplying water, but this provision had nothing whatever to do with the water right, whether sold with the land of the company or to be attached to other lands. It applied solely to the amount to be charged for storing and.distril)uting the water. Under the constitution, the act of 1885 was enacted, which changed the old law only in the particular that by its provisions, if the rates for supplying the water fixed by the company were not satisfactory, any twenty-five citizens of the county may petition the board of supervisors to fix the rates, and the board must do so. It is simply an additional protection to the holders of water rights against the fixing of unjust rates after they have acquired their water rights. There is nothing in the statute or in the constitution that goes further than this. But it is said the constitution provides that the right to collect rates or compensation for water supplied is a franchise, and cannot be exercised except by the authority of and in the manner prescribed by law. So it does. But so is the operation of a railroad franchise, and can only be exercised by authority of and in the manner prescribed by law. Both kinds of corporation can obtain rights of way, reservoir sites, water rights, depot sites, and other permanent property neces- sary to the conduct of their business, as prescribed by law, namely, by condem- nation. The railroad company's rates are regulated by law, the same as those of the water company, and both are subject to the control of the public author- ities ; but would any court hold that because the rates or fares of a railroad are fixed by law, it cannot sell its franchise or right of way or other property belonging to it, where it is not expressly forbidden to do so. and if n(U. why can it be held, or for what reason, that a water company that had bought and paid for, or condemned and paid for,or appropriated under the laws of the State, a water right, can be compelled to transmit that water right, or any part of it, to another, without compensation ^ The constitution does not so provide, nor does the statute. If they did, it is submitted tha it would be in violation of the constitution of the United States, for this would be taking pn^perty without compensation, or confiscation, plain and simple. In the case of Lanning v. Osborne, the cases of Price v. Irrigating Com- pany, 56 Cal. 431, and People v. Stej^hens, 62 Cal. 209, are cited as support- ing the views expressed in the opinion in that case, and they do support such views to the extent of holding that the use of water is a pul)lic u.se that may be and has been regulated by the State. In Price v. Irrigating Co.. the court said (p. 434) :— 158 History of the Bench and Bar of Calif ornl la. "The defendant, therefore, is bound to furnish plaintitT with water to rri- gate his lands on his payment of the rates fixed in the manner prescribed by law, — it having the water to furnish." But the question of the right to charge for a water right was not in question, much less the question of the rights of the company and a consumer to vol- untarily contract for such right for a consideration. But obviously this is the real, and it is believed the only question involved, viz. : must the law providing for the fixing of rates and forbidding the company to charge other than the rates so fixed, be held to forbid, by implication, the sale, for a consideration, of the water right or preferred and perpetual right to the use of the water once supplied? The statute certainly does not forbid such sale in terms. But the strength of the very able and exhaustive opinion in the Lanning case lies right here. The position taken, briefly stated, is that' the charge for a water right is but another way of adding an additional charge for the water used. And, it is not without force, it must be conceded. But it must be borne in mind that the constitution and statues were passed and adoped with full knowledge that just such a separate charge was being contracted for and made. It was a matter of common knowledge, a part of the history of the State. Not only so, but the Code then in force recognized, in terms, the distinction between the easement or right to the perpetual flow of the water and the rates to be charged for the water used. And why should the right to contract for property so val- uable be denied by the courts under such circumstances, where the law does not forbid it? The importance of the right on the part of the land owner to make such a contract may be further illustrated by the experience of the company above mentioned. When the compan}' had in contemplation the construction of its system of water works, it was advised by its engineer that the system would supply for irrigation purposes twenty thousand acres of land. There were that number of acres of land under its system. It constructed its works with that under- standing and belief. It was found by experience, after the works were com- pleted, that the duty of the system was not to exceed seven thousand acres, about one-third of its previously estimated duty. As has been said above, the right to procure water from that system increased the value of the land under it from fifty dollars to three liundrcd dollars. Some of the land owners under the system must obtain that right to the exclusion of others, for the reason that there was not water and facility for supplying it sufficient to irrigate nearly all of the land. Now, why might not a land owner who desired to procure this preferred right, as against other land owners under the system, agree with the company to pay it a reasonable consideration for such right to ha\'e the water supplied to his land? There can be no reason, unless the law forbids it. If not, unquestionably, it was property, and the subject of contract between the parties. If the law does forbid it, of course that is an end of the question ; so that the sole question here is, as stated above, whether History of the Bench and Bar of California. 159 the constitution and statutes can properly, and ought to be, construed as con- taining an inhibition against making such contract. There were other cases decided by Judge Ross, confirming the conckision reached by him in the Lanning case. In Souther v. San Diego Flume Com- pany, an action was brought against the company to rescind a contract for a water right, on the ground that it had failed to furnish the full supply of water. The company, by way of a cross bill, set up the same contract and sought to recover upon it the amount agreed to be paid for the water right. It was held that neither praty was entitled to recover; that the complainant could not rescind the contract, because it was void, and the cross-complainant could not recover on it for the same reason. The case was decided on the authority of the Lanning case, and the opinion is not reported. In the case of Mandell v. San Diego Land and Town Company, one Sharp intervened and sought to force the company to supply his land with water. The company defended against his claim on the ground that his lands were at such an elevation as to render it difficult and expensive to supply the water ; that it had contracted with Sharp to supply his land for only five years, and that he, by the contract, expressly waived his right to claim the right to the use of the water for a longer time, by virtue of Section 552 of the Civil Code or otherwise. But it was again held that the special contract was void, and as the company had commenced to supply the water, notwithstanding the con- sumer had expressly contracted that supplying the water should not have that effect, in his favor, he was entitled to its perpetual flow. Mandell v. San Diego Land and Town Company, 89 Fed. Rep. 295. All three of these cases were appealed ; the Lanning case to the Supreme Court of the United States, and the others to the United States Circuit Court of Appeals. In the Lanning case, reported under the title Osborne v. San Diego Land and Town Company, the Supreme Court declined to pass upon the ques- tion, and affirmed the decision on other grounds. In Souther v. San Diego Flume Company, the decision of Judge Ross was reversed, the Circuit Court of Appeals holding that the company and its consumers had the right to contract, not only for a water right, hut for annual rates, and that the Supreme Court of this State had. by its decisions, recog- nized the validity of such water right contracts. San Diego Flume Co. v. Souther, 90 Fed. Rep. 164. But a rehearing was granted in this case on the petition of attorneys not interested in the case, but whose clients were interested in the questions in- volved. The case was re-argued and again submitted and taken under advise- ment, but a decision has not yet been reached. The decision in the Sharp case was affirmed, but without deciding the im- portant question of the validity of the contract mentioned. San Diego Land and Town Co. v. Sharp, ()7 I'cd. Rep.. 304. So the decisions of Judge Ross against the validity of such contracts siand 160 History of the Bench and Bar of California. alone up to the present time. His opinions have been well considered and are entitled to the respect due to the decisions of an able and distinguished judge, fully understanding and appreciating the transcendant importance of the ques- tion with which he is dealing. The question is one about which there may- well be decided differences of opinion, and that such differences do exist, amongst judges and lawyers thoroughly competent to pass upon the question, has been fully demonstrated. The case of Fresno Canal and Irrigation Company v. Parks is now pending in the State Supreme Court. It has been submitted, briefs have been filed by able attorneys representing parties to the suit, and other briefs, on both sides of the question, have been submitted by the attorneys interested in the question. An early decision is expected but there is doubt whether the decision of the case requires a decision of this question. And if it does, the diversity of opinion on the subject is so great that only the spirit of prophecy would enable one to say what the result is likely to be.* OF THE QUESTION OF THE RIGHT TO FIX RATES BY CONTRACT. We have seen that by the statute of 1885 the manner of fixing rates is prescribed in conformity to the provisions of the constitution. Two mode? of establishing the rates are provided for, viz. : by the board of supervislors on the petition of twenty-five inhabitants who are tax payers of the county, and by the person, cornpany, association or corporation furnishing the w^ater. Stat. 1885, pp. 95, 97, Sees. 3, 5. As the constitution provides, in terms, that "the right to collect rates or compensation for the use of water is a franchise and cannot be exercised except by authority of and in the manner prescribed by law," and the statute has prescribed these two modes of establishing the rates, and these only, it would seem to follow conclusively that rates cannot be established in any other way. But this apparently clear proposition has not gone unchallenged. On the contrary, it is stoutly maintained that, notwithstanding the constitution and statute, the company supplying the water and its consumers may, by their own private contract, establish an unalterable rate as between them. But this is so manifestly subversive of the constitution and statute as to render it entirely untenable. The undoubted policy and intention of the law is that rates shall be equal and uniform to all takers of water from the same system for the same *N0TE. — Since this paper was put in type the case of Fresno Canal and Irrigation Co. V. Parks has been decided. The decision upholds the right of a water company to contract with a consumer for both a water right and annual rates, but subject, nevertheless, to State control and regulation. But what power of regulation can remain in the State if the parties can legally bind themselves by contract, cannot be readily nerceived. This prob- lem is left to further adiudication. History of the Bench and Bar of California. 161 purpose or kind of use. That the rates shall be equal and uniform, when fixed by the board of supervisors, is expressly provided by the statute, as follows : ''But such rates as to each class shall be equal and unifonn." By implication it must be held that the "actual rates established and collected by the company" must be equal and uniform. If the use of the water is a public one, as it undoubtedly is,it must necessarily be supplied to all takers under like conditions at the same price and on the same terms and conditions, independently of any statutory provision to that effect. Now, if it is once admitted that rates may be fixed by contract between the company and each of its consumers, the power of regulation by the state is lost, and the constitution and statute providing therefor are effectually abrogated, and every consumer may, by virtue of his contract with the company, have a different rate from every other consumer under the system. But it must be remembered that the rate to be charged is a matter of public concern. The right to petition for the fixing of rates by the board of supervisors is not confined to takers of water from the company. It may be exercised by any twenty-five inhabitants and tax payers. It must be obvious that this right given to a class of the public cannot be taken away by any contract made by the company with some other person belonging to that class or not as the case may be. It is true that the power of the board of super- visors is to fix maximum rates and the inhibition against the company is that it shall not charge more than the rate fixed. It may charge less, undoubtedly. But if it does, it must establish the same rate for all its consumers. It could not charge one more and another less, but whatever rate it exacts must be equal and uniform. So it cannot, in the nature of the case, fix rates by con- tract, but must by some general order or otherwise fix a uniform rate to be imposed upon all of its consumers. But, as said, this has been and is now being contested in the courts. The position was taken in Lanning v. Osliorne, above reviewed, that the company might fix the annual rate to be paid by con- tract with its consumers, and, further, that by representing to parties buying land from it that water would be supplied at a stated rate, the company was estopped to thereafter increase the rate. Judge Ross held against both ( «f these contentions, saying : "The views above expressed are conclusive against the positions of the defendants, unless it be, as claimed by them, that the complainant is estopped from making any changes in the rates at which it has heretofore furnished the defendants with water, or that the water in question is so far private prop- erty as that the parties to the suit could make valid contracts in respect to the rates at which the company should furnish it to the defendants. If the com- pany is a private corporation, and the water private property, this would undoubtedly be so; but if the complainant is a public or quasi public corpora- tion, and the water in question is, and at all the times mentioned has been charged with a public use, it is not true; for nothing can be clearer than that, in respect to such water, rates established in pursuance of law must control, and that no attempt to ignore that control and to establish them by private contract is of any validity. The fact that some of the purposes for which the complainant company was incorporated are purely private is unimportant. 162 History of the Bench and Bar of California. since among the purposes is 'the supph-ing of water to the public' and 'the construction and maintenance of dams and canals for the purpose of water- works, irrigation, or manufacturing.' " * * * "As the water in question, from the moment the appropriation became effective, became charged with a public use. it was not in the power of either the corporation making the appropriation or of the consumers to make any contract or representation that would at all take away or abridge the power of the State to fix and regulate the rates. All persons are presumed to know the law, and those who bought lands from the complainant corporation upon its representations that water for irrigation would be furnished at the annual rate of $3.50 an acre, or otherwise acted or contracted with reference to such rates, must be held to have known that the constitution conferred upon the legislature the power, and made it its duty to prescribe the manner in which such rates should be established. This the legislature has done by the act of March 12, 1885. As by that act the legislature deemed it proper to allow the action of the board of supervisors to be invoked in the first instance only by twenty-five inhabitants, who are tax-payers of the county, and until then to leave the designation of rates to the person, company, or corporation furnish- ing the water, to hold valid and binding any contract between parties with reference thereto w^ould be. in effect, to ignore and set aside the provisions of the statute upon the subject; for it is plain that a contract must bind all of the parties to it, or it binds none ; and. if binding at all, its manifest effect would be to remove from the regulation of the State the rates in question, and leave them to be governed and controlled by private contract, or such representations and acts as may amount to the same thing. No company or corporation charged with a public use can be estopped by any act or representa- tion from performing the duties enjoined on it by law. It will hardly be contended that the defendants, by reason of any of the express contracts, pleaded in defense of the suit, or of any contract growing out of the representations alleged to have been made by the company, would be estopped from applying to the board of supervisors of the county for the establishment of rates. The case, in truth, affords no basis for the operation of an estoppel against either party: which, to be good, must be mutual." This reasoning seems to be unanswerable. On the appeal of this case to the Supreme Court of the United States, the positions taken in the Circuit Court were again advanced, and it was further contended that if the constitu- tion and laws of California did take away or abridge the right of the company and its consumers to contract with reference to their property, they were in violation of the constitution of the United States. The Supreme Court did not pass upon any of these questions, in terms, but decided the case on other grounds. But the reasoning of the Court in passing upon the question whether rates fixed by the company were forever fixed, and unalterable, is pertinent as establishing the doctrine that the intention of the law is to regulate rates from time to time to meet changed conditions, and that no rate could l)e held to be irrevocably established, whether fixed by the board of supervisors or by the company. It is said : — "The purpose of the Act rejects such view. Its purpose is regulation, delib- erate and judicial and periodical regulation by a selected tribunal, and we cannot believe that the legislature intends by an absolute and peremptory pro- vision to fix rates upon the water companies unalterable by them, no matter what change in conditions might supervene. Against rates which may become History of the Bench and Bar of California. 163 unreasonably high, the statute gives relief to consumers through petition to the board of supervisors. Rates which may become unreasonably low. it surely does not intend to impose on the companies forever, except as relief may come from the voluntary justice of its customers or by a violation of the statute and appeal to the courts. There is nothing in the Act to indicate the regulation of the rates by law, not commanded to be exercised by the governing bodies as a voluntary duty as establishing rates in cities and towns, but exercised when invoked by petition. Until the necessity of that, what more natural and just than to leave the right with the water companies and recognize it as legal. This is the meaning, we think, of the provisions of sections 5 and 8, supra. To so interpret them makes the scheme of regulation complete — adequate, without being meddlesome or oppressive. The power of regulation is asserted and provided for, and ready to be exercised to correct abuse, and who doubts but that its exercise would be invoked." In the case of Fresno Canal and Irrigation Co. v. Parks, pending in the State Supreme Court, and above mentioned, this claim of right to fix rates by private contract is again asserted, this time by the sui^plier of water. In the other case, the contention was by the water consumers. The only decision, so far, upholding this asserted right to fix rates by con- tract, is that of Souther v. San Diego Flume Co., 90 Fed. Rep. 164. The Circuit Court of Appeals, after reviewing the cases, reach this conclusion: "Corporations engaged in the business of furnishing water for irrigation, under the laws of California, whether they acquire the water by appropriation of the waters of the State or otherwise, are private corporations. They are nowhere declared to be public corporations or quasi public. They conduct their business for private gain. For reasons affecting the public welfare, they are given the right of eminent domain, and, in order that the use of the water may be fairly and equitably adjusted to consumers and their rights protected under the constitution, it is provided that in a certain contingency the rate to be paid by the consumer may be fixed in a manner prescribed by law\ The use is public only to the extent that the corporation may be compelled to furnish the water, provided it has the capacity to do so, to all who receive and pay for the same, and that the rule of compensation shall be fixed by the law in case the parties cannot agree." It is believed, however, that this conclusion is based u])(M1 an entire misccMi- ception of the nature and obligation of a corporation dealing with water ni such way as to bring it within the i)rovisions of our constitution. Such a corjMn-a- tion is not a private corporation, but a quasi public corporation, ni so far as it deals with the public use in the water. The difference between such a cor- poration and one supplying water to its own stockholders, and not to the general public, is pointed out in McFadden v. Supervisors. 74 Cal. 571. And the Circuit Court of Appeals has granted a rehearing in the Souther case, so that the decision is no longer authority. It is cited for the jnu-pose of show- ing the views of the judges rendering ihc decision as the case was then pre- sented. There is another statute bearing on this subject that should be noticed in this connection. After an adverse decision was rendered against them by Judge Ross in the Lanning case, the water takers affected by the dccisi-.n sought to make a good defense for themselves l)y securing legislation by which 164 History of the Bench and Bar of California. it was hoped to make valid the water right contracts that had been held in that case to be void. The act is an amendment to the statute of 1885, and adds a new section, as follows — : "Section li^. Nothing in this Act contained shall be construed to pro- hibit or invalidate any contract already made, or which shall hereafter be made, by or with any of the persons, companies, associations or corporations described in section 2 of this Act, relating to the sale, rental, or distribution of water, or to the sale or rental of easements and servitudes of the right to the flow and use of water; nor to prohibit or interfere with the vesting of rights under any such contract." Stat. 1897, p. 49. This amendment to the statute was pleaded at a later stage of the case, but Judge Ross held that it did not purport to make valid any contract other- wise invalid, and had not the effect to render valid the contracts in question there, and his conclusion as to the invalidity of all such contracts was again stated. Lanning v. Osborne, 82 Fed. Rep., 575. This amendment grew out of the exigencies of the occasion, and is utterly inconsistent with the other provisions of the act. It simply provides that nothing in the act shall be construed as invalidating certain contracts, when it cannot properly be given any other construction, and makes the whole act an absurdity if given the effect intended. The act provides that the board of supervisors shall, when petitioned to do so, fix the rates to be charged. If the rates so established are not to take the place of and abrogate rates fixed by the contract of the parties, the statute is no better than so much blank paper, and the constitutional right of regulation is a delusion. OF THE LAW OF IRRIGATION DISTRICTS. The law of irrigating districts has ceased to be of general interest. It has become important only to the unfortunate bondholders of the districts now in existence and the more unfortunate property owner therein whose property is subject to taxation to pay the bonds. The law has proved such a dismal failure, in its practical workings, that it is not likely that the formation of any new districts under it will ever be attempted. The principal question now is how the districts that have been formed can be dissolved without unlawfully destroying, or interfering with, vested rights, particularly the rights of bond- holders and other creditors of the districts. Litigation that has grown out of the irrigation district laws has been mainly the result of efforts to defeat the organization of the districts and prevent taxation by them. This being the condition of things, a minute examination and review of the various statutes will not be of general interest. But a paper on the irrigation laws would certainly not be complete without calling attention to these statutes and the decisions resulting from them. History of the Bench and Bar of California. 165 A statute was enacted in 1872, providing for the organization of drainage and irrigation districts. Stat. 1872, p. 945. This statute was very general in its terms, and did not prove to be of much importance, so far as the formation of irrigation districts was concerned, and therefore need not be further noticed. Later, in 1887, ^ statute, com- monly known as the Wright Act, and containing an elaborate scheme for the organization and operation of irrigation districts, was enacted. It pro- vides for a petition of "fifty, or a majority of freeholders owning lands sus- ceptible of one mode of irrigation from a common source, and by the same system of works," to the board of supervisors, for the formation of the dis- trict; for notice and proceedings before the board; for elections to determine whether the district should be formed ; and for the election of officers ; for the issuance of bonds when authorized by a vote of the property-owners; for the levy and enforcement of taxes for the payment of the bonds, and other things of lesser importance. Stat. 1887, p. 29. Much was expected of this statute, and an avalanche of districts followed, most of which have proved to be disastrous failures, and probably none but had better never have been brought into existence. For the first few years thereafter, amendments to this first statute were enacted, in order to make it more effective. Stat. 1889, p. 15. Stat. 1 89 1, pp. 142, 244. Stat. 1893, pp. 175, 516. Of these statutes, intended to aid and strengthen the original act, was what is known as the "Confirmation Act," by which, after proceedings for the organization of the district, or the issuance of the bonds, the board of directors are authorized to petition the Superior Court of the County for a decree confirming the validity of such proceedings. Stat. 1889, p. 212. Then followed a reaction. It was found that the practical operation of the statute was not what had been expected, and a wide-spread dissatisfac- tion with the statute, and with the operation of the districts organized under it, followed, and has continued down to the present time. As a result of this feeling, other statutes have been enacted with a view to make the original statute less effective, to prevent the formation of new districts, and to pro- vide a means of bringing the old ones to an end by a dissolution of them in some lawful way, and the reduction of their bonded indebtedness. Stat. 1893, pp. 276, 520; Stat. 1895, P- 127; . Stat. 1897, p. 254. The last of the foregoing statutes is even more elaborate than the original 166 History of the Bench mid Bar of California. Wright Act. It is not important, however, except that it makes the organ- ization of such districts more difficult and makes it quite certain that unless a decided change of public sentiment takes place, no districts will ever be formed under this new Act, which was probably intended to be its effect. In the meantime, the courts, both State and Federal, have been called upon to pass upon numerous questions growing out of these various statutes. The most important of the questions decided are as to the constitutionality of the act providing for the organization of districts, and as to the effect of the Confirmation Act, and proceedings under it. In the case of Bradley vs. Fallbrook Irrigation District, 68 Fed. Rep., 948, Judge Ross, of the Circuit Court of the United States, held the act to be in violation of the Constitution of the United States. It is unfortunate, looking at the question from the point of view of public interest, that this decision was not adhered to, as it would have relieved the State of an incubus that has been a most serious detriment to its best interests, and freed thou- sands of acres of land from the blanket lien of an exorbitant bonded indebt- edness that, in most cases, is not likely ever to be paid. But the Supreme Court of the United States reversed the decision of Judge Ross, and held the statute to be constitutional. Chief Justice Fuller and Justice Field dis- senting. Fallbrook Irrigation District v. Bradley, 164 U. S., 112. And the State Supreme Court has upheld the constitutionality and validity of the Act in a number of cases. Turlock Irrigation District v. Williams, 76 Cal., 360; Crall V. Poso Irrigation District, 87 Cal., 140; In re Madera Irr. Dist.. 92 Cal., 296; In re Central Irr. Dist., 117 Cal., 382. So it may be regarded as settled that the law for the organization of irriga- tion districts is constitutional and valid. As to the effect of the Confirmation Act. it is a separate and independent statute, and not an amendment of the act for the organization of districts. In re Central Irr. Dist.. 117 Cal.. 382. Its object was to remove all doubt as to the validity of the proceedings for the organization of the districts, and for the issuance of the bonds, and to insure the sale of such bonds. Crall V. Poso Irr. Dist.. 87 Cal.. 140. The State Supreme Court has held, contrary, it is believed, to the rule applied in other like cases, that the law for the organization of districts should be liberally conptrued. Central Irr. Dist. v. De Lappe. 79 Cal., 351. And. while the Supreme Court of the United States intimated, in the case of Tregea vs. Modesto Irrigation District, 164 U. S., 179, if it did not decide, that the proceedings fr)r confirmation were of no binding effect, as History of the Bench and Bar of California. 167 an adjudication, the Supreme Court of California has held that the decree of confirmation is binding and conclusive, not only as to the district and its property-owners, but as against the State of California and the whole world. Crall V. Poso Irr. Dist., 87 Cal., 140: Board of Directors Modesto Dist. v. Tregea, 88 Cal.. 334; Rialto Irr. Dist. v. Brandon, 103 Cal., 384; People V. Linda Vista Irr. Dist.. (May 18. 1900. unreported). This may be so in respect of all questions of procedure, and as to irregu- larities, but it is submitted, with respect, that such decree cannot supply a want of jurisdiction in the board of supervisors which would render their pro- ceedings void. If so, persons claiming to be directors of districts, but wdio are not so in fact, may ask the Superior Court to decree void proceedings to be valid, and thereby organize a district by a decree of that court, which is wholly unauthorized, and, by a subsequent decree, founded uj^on the fact that the district has been organized and directors elected, authorized to prose- cute the proceeding, breathe the l)reath of life into a body that never breathed before, and make a district out of whole cloth. If this can be done, any three or more men claiming to be directors of a district may come into court and have a decree rendered that such district has been legally organized, when no steps have ever been taken for such purpose, or even thought of. The Supreme Court may have intended to go this far. Imt if so. it has certainly gone in the face of well-settled rules of law to the contrary. A void pro- ceeding, resulting from a want of jurisdiction, is as nothing. No subsequent action of that or any other court can make it valid. This rule is elementary. Applying it to a case of this kind, it is impossible, if the proceedings before the board of supervisors are void for want of jurisdiction, that any decree of another court can make them good or estop any one from asserting them to be bad. But it is not believed that the Supreme Court intended to go so far. The right to attack the proceedings of the Superior Court for want of jurisdiction is recognized in Board of Directors vs. Tregea, 88 Cal.. 334, 347. And if they can be attacked in one way on the groimd that they are void for want of jurisdiction, they can in any other legal way, collaterally or otherwise, and at any time. It is also held that where the petition for the organization of a district is not signed by the requisite number of freeholders owning lands in the district, it is fatal to the organization, and a proceeding to confirm cannot be maintained. Directors Fallbrook Irr. Dist. v. Abila, 106 Cal., 355. This was in a proceeding to confirm the action of the board of sujjcr- visors. and the question was raised by answer. But the ccnu't holds that the confirmation proceeding camiot be maintained where the board had no jurisdiction. If the decisions of the court can jjroperly be construed as holding the confirmation proceedings to be conclusive on the question of jurisdiction, it holds that if there is a want of jurisdiction a confirmation jjroceeding can- 168 History of the Bench and Bar of California. not be maintained, but if it is maintained and the Superior Court finds there was jurisdiction, when there was not, everybody is conclusively bound to the fact that what was not, really was. The court has also held that the finding of the supervisors of facts giving them jurisdiction, is not conclusive in the confirmation proceedings, but may be inquired into by the Superior Court. In re Central Irr. Dist., 117 Cal., 382. It does not follow, however, that such fact may be questioned in any collateral proceeding or action. Indeed, it has been held in a number of cases that the proceedings for the formation of the district cannot be attacked collaterally. Quint V. Hoffman, 103 Cal., 506; Miller v. Perris Irr. Dist., 85 Fed. Rep., 693; Miller v. Perris Irr. Dist., 92 Fed. Rep., 263. But this, again, cannot properly be extended so far as to prevent a collateral attack upon the proceedings if they are void for want of jurisdiction. To so hold is to overturn the well-settled rule of law that a proceeding void for want of jurisdiction may be attacked at any time and in any form, collaterally or otherwise. If, therefore, a property-owner should attempt to enjoin the enforcement of a tax against his land, by an alleged district, which never had an existence because the proceedings for its organization were void, this would undoubtedly be good ground for such injunction. A different rule was laid down in Miller vs. Perris Irrigation District, 85 Fed. Rep., 693. But the learned Judge delivering the opinion failed to distinguish between an action to inquire into the organization or existence of a corporation, which can only be prosecuted b}' the State, and an action to prevent an illegal assess- ment and enforcement of taxes against the property of a private individual. It would be singular if such an action could not be maintained by showing that the parties levying and attempting to collect the taxes had no legal authority or power to do so, because they were not a district or officers of a district. Certainly this could be shown, if the parties complained of made no claim to be or represent a district or other corporation possessed of the power of taxation. And if the proceedings for the organization of the dis- trict are wholly void, it would be precisely the same as if no such proceed- ings had ever been had. The case of Norton vs. Shelby County, 118 U. S., 426, contains the view here taken. It distinguishes between an effort to question the acts of a de facto ofificer of an existing corporation and an attack upon the ground that the office itself has no existence. Notwithstanding what is said of this case in Miller vs. Perris Irrigation District, supra, it applies directly to conditions such as we are now considering, because here the right claimed is not to show that a de facto officer of an existing office was not authorized to act as such, but that no such office or corporation had an exist- ence, and therefore the levy of taxes made on his property was illegal and void. History of the Bench and Bar of California. 169 See also People v. Toal, 85 Cal, 333 ; Beach Pub. Corp., Sec. 890. The rule is correctly stated in Beach on Public Corporations as follows : "When the attempted organization of a municipality is void, such a body may plead the invalidity of its organization in defense, to a suit brought on its bonds since it has no power to issue them." If the alleged corporation may defend against liability growing out of facts void because it was not a corporation, certainly the same fact would be good ground for preventing the taking or selling of property by it for taxes it had no power to levy. Another question growing out of these statutes should be noticed. Quo warranto proceedings have been brought by the people to test the validity of the organization of some of the districts. The act for the organization of such districts, as amended, contains this provision : — "And no action shall be commenced or maintained, or defense made, affect- ing the validity of the organization, unless the same shall be commenced or made within two years after the making and entering of said order." Stat. 1891, p. 143, Sec. 3. Does this limitation bind the State in a proceeding to forfeit the charter of the district and to forbid its further usurpation of the franchises and powers of a corporation? It has been maintained, in some of the pending actions, that it does. But this can hardly be so, as the code provides that the attorney- general may bring the action whenever he has reason to believe that any such office or franchise has been usurped. Code Civil Procedure, Sec. 803. And the Supreme Court has held, in a number of cases, that the usurpa- tion of the franchise of a corporation is a continuing wrong, and each day such wrongful act is repeated is another and separate cause of action. People V. Stanford, yy Cal., 360, 377; People V. Reclamation District, 50 Pac. Rep., 1068; People V. Jefferds, 126 Cal., 296. The language of the court in the last case cited is : "The continued exercise of a franchise, without right, is a continuously renewed usurpation on which a new cause of action arises each day." If this be so, there could be no bar to an action of this kind by limitation, so long as the usurpation continues. And, as the last case cited was one against an acting irrigation district, it would seem to be conclusive of the question. Still another question of interest has been presented in an action of quo warranto to question the right of the Perris Irrigation District to exercise the franchises of a district. It w^is alleged and proved in that case that tiie order of the board of supervisors organizing the district and two confirma- tion proceedings were produced by fraud, that one of the decrees of confirma- tion was procured on one publication of notice of the time and place of hearing the petition, when three publications were necessary by law, and the other 170 History of the Bench and Bar of California. by bribing the attorney of certain contestants of the order of confirmation to absent himself when the petition came on for hearing, by which no defense was made. The particular fraud alleged and proved was that signers of the petition were not bona tide freeholders, but had been made such by con- veyances to large numbers of them of small tracts of land under an agree- ment to reconvey the same as soon as the district was formed, which agree- ment was carried out, and that it was concealed from the board of super- visors and Superior Court that this had been done. The case has not yet been decided by the Supreme Court. TheSupreme Court has decided that signers of such a petition must be "bona fide owners of agricultural bnds desiring to improve the same by conducting water thereon." In re Central Irr. Dist., 117 Cal., 382, 398. An irrigation district is held to be a public corporation that cannot be dissolved for misuser or non-user of its corporate powers in the absence of a law conferring power on the courts to pass a judicial sentence dissolving such corporation upon those grounds. People V. Selma Irr. Dist., 98 Cal., 206. The statute authorizing the issuance and sale of bonds provides that the bonds may be exchanged for certain purposes. This is held by the Supreme Court to be a limitation of power on the part of the board of directors, and that bonds cannot be exchanged for other purposes than those mentioned, but must be sold for cash. Hughson V. Crane, 115 Cal., 404. The intention of this paper has been to call attention to the most import- ant questions growing out of our irrigation laws, and decisions relating to them, and to point out some of the defects that, in the judgment of the writer, should, in the interest of the public, be corrected. The subject could not be fully covered in an article of this kind. It has not been the purpose to com- ment upon, or even cite, all of the decided cases, but only the most important of them. The study of the question of water rights and irrigation laws is most interesting. It deserves a more careful study than has yet been given it, with a view to a better understanding of it, and a speedy correction of its defects. If this paper shall serve to bring this about, in any degree, the writer will l)e sufficiently repaid for the lal)or bestowed upon it. There is one subject connected with the water supply of the State that has not been dwelt upon here because it does not fall within the irrigation laws or decisions. But it should not be overlooked. It is the absolute and imperative necessity of preserving the water supply. The unnecessary and often wanton destruction of our forests and all undergrowth and vegetation that has heretofore pro- tected and preserved our water supply is nothing less than a public calamity that should l)e prevented 1)y the most stringent penal laws and tlie withdrawal from sale of all timbered land to private individuals, by the national govern- ment and the acquisition by it, if possible, of such lands already sold. JOHX D. WORKS. Los Angeles, September, 1900. TRAGIC HISTORY OF THE SHARON CASES ■By ^HE EDITOR '^3-^3 f^ oh oY3 e^ eVg 4^ cfe t^ HISTORY of the BENCH and BAR of CALIFORNIA ujo 6^ Gg> c)^ y ijp e^ e^ cj. , .y. The TRAGIC HISTORY of the SHARON CASES William Sharon, born in Ohio, of Quaker parents, on the 9th of January, 1820. arrived in California on August 15, 1849, ^.nd followed the business of a real estate broker. He prospered, and, after a good many years, specu- lated in the mines on the Comstock lode, in Nevada, on a vast scale, and acquired a fortune of many millions of dollars. He was president of the syndicate which reorganized the Bank of California, after its suspension, in 1875. He had then for some years, had charge of the Virginia City (Nev. ) agency of that bank. In February, 1874, he purchased the Enter prise news- paper of that place. In the following year he was elected, as a Republican, United States senator for Nevada, and served a full term of six years, being succeeded by James G. Fair, Democrat, on the 4th of March, 1881. His wife died in San Francisco in 1875. He had two daughters. One of these, who has since deceased, became the wife of Frank G. Newlands, wdio has now for a long period been representative in Congress from Nevada ; the other married Sir Thomas Hesketh, of England, in 1880. In the San Francisco city directory for 1879-80 is to be found the name "Miss S. A. Hill, resides The Baldwin," and in the same book for 1880-81 appears, "Miss Allie Hill, resides The Baldwin" — her first appearance, and her last, on the directory pages. The "Life of David S. Terry" appeared in 1892— by A. E. Wagstaff (a name very favorably known) authorized by Judge Terry's son. Of course, the book is quite interesting. Sarah Althca is thus introduced in the well- written story : Dramatic incidents are usually embellislicd by a woman, and no woman is capable of creating incidents of moment, involving the attention of the public, unless pos- sessed of some extraordinary abilities or peculiar characteristics not in keeping with the usual order of her sex. The Pacific Coast has been the nursery of surprises in almost every department of life. It was here millionaires were first counted in large numbers, vast wealth supplied the sinews of war for the rebellion, and schemes of marvelous engineering surmounted obstacles in crossing the mountains and building the transcontinental railway. Society was also shocked with her characters, and the 174 History of the Bench and Bar of California. enterprise of a Mciggs and his compeers astonished the coinitry. The clash of nation- alities represented in the avenues of trade and commerce only irritated the spirit of enterprise with its cosmopolitan ideas. Among the contributions to society was a Missouri girl whose advent was noted in 1870. She came unheralded and unknown, and was only one of a thousand who had preceded her. She would have probably remained in modest obscurity had she not become infused with a spirit of speculation in an endeavor to regain a foolishly-spent fortune. At that time both sexes were wild over mining stocks, but, unfortunately for her, she was endowed with a rash and impetuous nature, backed by zeal and determination, and her faculties for scheming in the channels of the general gamble were sharply defined. In her contact with the world, all her faculties were on edge. She was a woman of fair education, strong passions, and infinite resources, in the pursuit of whatever fancy took possession of her mind, and in her endeavors to obtain wealth in the field of speculation, she became acquainted with Hon. William Sharon, then United States senator from the State of Nevada, who was a wealthy banker and controlled vast mining interests. The social intimacy and business relations, whether honorable or not. led to the most startling results. The following brief mention of the lady is taken from what is said to be a correct history of her former life in Missouri, and as its correctness has never been challenged, it is here presented without comment : — "Sarah Althea Hill was born near the town of Cape Girardeau, Missouri, in 1848. She comes of good stock, her father being Samuel Hill, a prominent attorney, and her mother, Julia Sloan, the daughter of a wealthy lumber-dealer. She has one brother, Hiram Morgan Hill. Her parents died in 1854, leaving the two orphans an estate valued at $40,000. Sarah is related to some of the best families in the country. "She attended school at Danville, Kentucky, and finally graduated from St. Vin- cent convent. Cape Girardeau, Missouri. She had a governess in the person of a Mrs. Barrall,' a sister of ex-Congressman Hatcher. Her grandfather, Hiram Sloan, was her guardian, and appears to have held a slack rein. "The young woman developed a spirited temper, and soon reaching legal age, made her money fly. She grew up into womanhood in much her own way, and was noted for her beauty and temper. She was a schemer, above all things, and this made her unpopular among her girl companions. It was said of her, too, that, though she was a spendthrift, she worshiped money, and gave her attention mostly to those who possessed it. She is remembered by her friends here as something of a flirt, and at one time is said to have had three engagements to^marry on her hands. One of the parties is now a prominent politician in Southeastern Missouri, and another resides in St. Louis. "Her con(|uests were numerous during the time she held her sway. She was fast, but her name was never tarnished with scandal. In love affairs Sarah was tyrannical, and more than one of her lovers had to suffer her iron rule and eccentric whims. "It is said that she really loved one young fellow, named Will Shaw. They were engaged to be married, but as the result of a tiff the young man determined to break the engagement. Sarah heard of this, and when next he called she was so charming that he pressed his -.uit with more ardor than ever, when she had her revenge by snubbing him. "TTie story goes that she really wanted and expected him to return, but he did not. and in September, 1870, disgusted and broken-hearted, with only the shadow of her fortune, she started for California. "A young uncle named William Sloan accompanied lier to the Coast. He was wealthy and took his niece to his mother's home. Sarah 'and the old lady did not live in harmony, and Sloan gave the girl a fine suite of rooms in a hotel. It is there that she met Senator Sharon." These were the parties to a Htigation whicli extended over a period of years in the State and Federal courts, marked by incidents and episodes tinprecedentedly strang-e. and acconiijlishing the worst ends of fate for a number of persons. f History of the Bench and Bar of California. 175 On the 3d of October, 1883, William Sharon, declaring himself to be a citizen of Nevada, brought suit in the United States Circuit Court at San Francisco against Sarah Althea Hill (the Miss Hill above) to obtain a decree adjudging that a certain paper, purporting to be a declaration of marriage between them, was a forgery, and ordering that the paper be cancelled. In his complaint Sharon alleged that he was possessed of a large fortune in real and personal property ; was extensively engaged in business enterprises and ventures, and had a wide business and social connection ; that, as he was informed, the defendant was an unmarried woman of about thirty years of age, for some time a resident of San Francisco ; that within two months then past she had repeatedly and publicly claimed and represented that she was his lawful wife; that she falsely and fraudulently pretended that she was duly married to him on the 25th day of August, 1880, at the city and county of San Francisco ; that these several claims, representations and pre- tentions were wholly and maliciously false, and were made by her for the purpose of injuring him in his property, business and social relations; for the purpose of obtaining credit by the use of his name with merchants and others and thereby compelling him to maintain her ; and for the purpose of harassing him, and, in case of his death, his heirs, and next of kin and legatees into payment of large sums of money to quiet her. He prayed for a decree that the defendant had never been his wife; that he did not make any declaration of marriage, and that she be perpetually enjoined from making any allegation of marriage with him ; and that she deliver up the alleged marriage contract for cancellation. On the first day of November, 1883, before pleading to Sharon's com- plaint in the United States Court, Sarah Althea, giving her name as Sarah Althea Sharon, and declaring that she was the wife of William Sharon, brought an action for divorce against him, in the Superior Court of San Francisco. She alleged that the two had been married 1)y virtue of having made and signed a written marriage declaration at San Francisco on. the 25th of August, 1880 — that is, the same alleged contract for the cancellation of which Sharon had brought suit against her four weeks prior. She prayed that the alleged marriage might be declared legal and valid, and that she might be divorced from him on account of certain infidelities, which she set forth. Alleging that he was worth fifteen millions of dollars, with an income of over one hundred thousand dollars per month, she ])raycd that an account might be taken, to ascertain what portion of his wealth was their common property, and that this be equally divided between them. I ler attorneys were Geo. \\\ Tyler and his son. \V. B. Tyler (Tyler & Tyler). Judge Terry was called in afterwards. On November 10th Sharon filed his answer in this suit, denying the alleged marriage, declaring that the document in (|uestion was forged; that he had never heard of it until within sixty days then past, and further, in 176 History of the Bench and Bar of California. regard to his property, that he was not worth over five miUion dollars, and his income was not over $30,000 a month. On November 24th on petition of Sharon, the parties being citizens of different States, this action was transferred from the Superior Court to the United States Circuit Court, where his own cause was pending. General W. H. L. Barnes was Sharon's attorney in both suits, ex-Supreme Judge Wm. T. Wallace being "of counsel." Next on December 3d Sarah Althea filed a demurrer in the first action. On December 31st the second suit, that had been instituted in the State court, and removed as stated, was, by agreement between the parties, remanded to that tribunal for trial. On ]\Iarch 3, 1884, Sarah Althea's demurrer in the first suit was over- ruled by United States Judges Sawyer and Sabin, with leave to her to answer Sharon's complaint on payment of $20, the usual terms. Before further proceedings there, the trial of the second suit was begun in the Superior Court, before Judge J. F. Sullivan, on March 10, 1884, a jury being waived. There was a widely accepted notion in the public mind, and even amon^ many lawyers, that there was some sort of interference on the part of the Federal courts to negative or obstruct the free action of the State courts in this great controversy. There was no real basis for this idea — the jurisdic- tion of the Federal courts first attached. While the trial at which we have now nearly arrived, was in progress in the State court, and during the pend- ency of appeals, proceedings were had at long intervals, in the United States Circuit Court, as follows : On the 24th day of April, 1884, a plea in abatement was filed. On the 5th day of May, 1884, a replication to said plea was filed. On the 1 6th day of October, 1884, an order adjudging said plea false, etc., was made and entered. On the 30th day of December, 1884, an answer was filed. A replication to said answer was filed on the 2nd day of January, 1885. On the 25th day of February, 1885, a supplemental answer was filed. A replication to said supplemental answer was filed on the nth day of March, 1885. On the 15th day of January, 1886, a final decree was entered. This decree, made on the 15th of January, 1886, was dated as of Septem- ber 29th, 1885, and entered as of this last given date, for two reasons, namely: First, that was the date of the final submission of the cause to the court after argument; and, second, Mr. Sharon had died after the submission and before the decree — on November 13, 1885. ' This decree adjudged that the alleged marriage contract was false, coun- terfeifed, fabricated, forged and fraudulent, and therefore utterly null and void, and directed that it be surrendered to the clerk of the court for cancel- • lation within twenty days. As a matter of fact the document was never delivered over; and when, more than three years thereafter, David S. Terry, History of the Bench and Bar of California. 177 who had meanwhile married Sarah Ahliea, was called upon, not by this court, but by the State Supreme Court, to produce the paper, he responded that it had been burned, with his residence at Fresno, in 1889. The decree of the United States Circuit Court was signed by Judges Lorenzo Sawyer and Matthew P. Deady, and was entered actually, not con- structively, just three and a half years prior to the final disposition of the case by the Supreme Court of the State. The trial of the action in the Superior Court was begun on jMarch 10, 1884, and was concluded on the 17th of September following, covering eighty days of actual trial. Its adventurous course need not be closely followed here. George W. Tyler was often in trouble. There was nearly a personal collision between Terry and Barnes in the court-room. Some witnesses for Sarah Althea were sent to the State prison before the case ended, for perjury. During the progress of the trial, the defense learned that on the ist of May, 1883, the plaintiff had visited a newly-made grave, prepared for the body of Anson Olin, at the Masonic cemetery, in San Francisco, and there, in the presence of a Mr. Gillard, employed in the cemetery, she deposited, under the box which was to contain the coffin, a package. The body was on the same or next day deposited in the grave over the package, which remained there until the grave was opened, after the commencement of the trial. These proceedings of the plaintiff came to the knowledge of the defense, while ex-Superior Judge Oliver P. Evans, associated with General Barnes, was cross-examining her. Under an order from the health officer authorizing it, the grave was opened, and the package referred to was found under the coffin. It contained a few articles of Sharon's underwear. Judge Evans held up each bit of clothing before the plaintiff in court, and asked if she had ever seen them before. She answered that she had not. The evidence of a fortune-teller, a witness for Sharon, detailed conver- sations the plaintiff had with her in the latter part of 1882 and the early part of 1883, with reference to a grave-yard charm, and what she, the fortune- teller, had advised was necessary in order to perfect that charm; that the plaintiff must wear about her person, for nine days and nine nights, certain specific articles of clothing, of the man whom she desired to marry; and that afterward she should deposit them in a newly made grave before the burial of the body, between the hours of twelve and one o'clock at night ; and that when the buried clothing would rot, the man whom she desired to marry would either marry her or die. Subsequently, the conditions of this charm were modified, so tiiat the articles might be deposited in the day-time, rather than at night. There was testimony also that the plaintiff did wear about her left leg, above the knee, a sock or socks of the defendant, for nine days and nine nights; also that she slept in one of Sharon's shirts. 178 History of the Bench and Bar of California. During the trial, General Barnes had reason to suspect that there was a secret agreement between Geo. \\'. Tyler and the handwriting expert, Gumpel, by the terms of which Gumpel was to swear to the genuineness of the signa- ture ("William Sharon, Nevada") to the alleged marriage contract, and, in the event of the plaintiff's success, was to receive a very large reward. The General freely expressed this thought, and Tyler saw his opportunity to get for everybody interested, and the public, too, some first-class sport, if nothing else. He wrote out, in his own hand, such a document as General Barnes believed to be existing, sul)scribed the names of himself and Gumpel, and placed the paper in his private drawer in his office. Gumpel gave Tyler lessons in the art of simulating his ( Gumpel 's) signature. Tyler's chief clerk was John F. McLaughlin, quite a capable young man, admitted to the bar, and by arrangement between the two, McLaughlin waited on General Barnes at his residence and told him that he had discovered among his employer's private papers, a contract between him and Gumpel (reciting its terms), and that he would get it and hand it over, if suitably compensated. McLaughlin was bold enough to say, substantially, "Mr. Sharon has sworn in his pleadings that his income is thirty thousand dollars a month. Give me one month's income, and I'll steal the agreement and deliver it up to you." Passing by the details of the negotiation, which indeed did not take up much time. General Barnes agreed to pay McLaughlin twenty-five thousand dollars for the document. He actually paid him that sum in new crisp, gov- ernment bills, (Sharon's money), at the General's house at night, and received the desired paper. There was no witness present. Gumpel had sworn that the Sharon name to the alleged marriage contract was a genuine signature. General Barnes argued that if Gumpel and Tyler had entered into such an agreement as supposed, it was a demonstration that the whole thing was a conspiracy. The affluent McLaughlin did not see fit to ever go back to his post as law- clerk, but hastily arranged to flee the country. He was on the Honolulu steamer before Tyler knew of his success. He went from Honolulu after a very short stay, to Australia, where he was unmolested, and where, a few years later, he died. In Honolulu he started a steam laundry, and lost the greater part of his fortune in the venture. The high-priced "agreement" was exhibited in court, but when Tyler declared that it was a decoy, and pointed to its face for proof. General Barnes did not long question it. Tyler was indicted for obtaining money ($25,000) under false pretenses, and was tried in the Superior Court (Judge T. K. Wil- son's department), and the jury disagreed, standing ten for acquittal. This was on July 3. 1886. On a second trial, the jury again disagreed, August 21, 1886. He was not prosecuted further. He received no part of the money ])aid to McLaughlin. On the 24th of December, 1884. Judge Sullivan rendered his decision in favor of Sarah Althea. finding that the alleged marriage contract was genuine. History of the Bench and Bar of California. 179 and that under it the parties had been married since August 25th, 1880; that the defendant had deserted her, and that she was entitled to a divorce and to a (h vision of the community property. On the i6th of February, 1885, the same court made an order directing the defendant to pay the plaintiff before the 9th of ]\Iarch, alimony in the sum of $7,500, and the further sum of $2,500 per month. It was also ordered that the defendant pay counsel fees as follows : To Tyler & Tyler, $20,000; to George Flournoy, $10,000; to Walter H. Levy, $10,000; to David S. Terry, $10,000; and R. P. Clement, $5.000 — all these being plaintiff's attorneys. Sharon appealed from the judgment, at first without asking for a new trial, confident that the findings did not support the judgment. Judge Sullivan having found among other things that defendant never introduced plaintiff as his wife, nor spoke of her as such in the presence of other persons; that plaintiff never introduced defendant as her husband, nor spoke to nor of him to other persons in his presence as her husband ; that the parties were never reputed among their mutual friends to be husband and wife, nor was there at any time any mutual, open recognition of such relationship by the parties, nor any public assumption by the parties of the relation of husband and wife. The Supreme Court, however, held that the findings supported the judg- ment (75 Cal., I ). Sharon also appealed from the order allowing alimony and counsel fees. The Supreme Court modified Judge Sullivan's order by reducing the $7,500 and vS2,500 respectively to $1,500 and $500. and entirely denied all counsel fees by re\-ersing the order on that point. This decision was rendered on the 31st of January, 1888. It was written by Justice McKinstry, and Chief Justice Searls and Justices Temple and Pat- erson concurred. Justices Thornton, McFarland and Sharpstein dissented. Immediately after this decision the heirs of Sharon (who had died November 13, 1885) placed this litigation so far as they were concerned, in the hands of William F. Herrin as their attorney, and he thereafter C(^n- tinued in charge of the case until the conclusion of this remarkable litigation, as hereinafter stated. Sharon had in due time made his motion for a new trial in Judge Sulli- van's court, and while it was pending he died, November 13. 1885. It was overruled on the 4th day of October. 1886. the executor of the will being substituted in his place and perfecting an appeal both from the judgment and from the order denying a new trial. Pending this last appeal, the executor, F. W. Sharon, commenced a suit in the United States Circuit Court against David S. Terry and Sarah .\lthea Terrv to revive the old suit in e(|uity which William Sharon had instituted on the 3d of October, 1883. Judge Terry had married Sarah .\lthca at Stockt(Mi. January 7. 1886. 180 History of the Bench and Bar of California. This last suit by the executor against Terry and wife was filed on the 12th of March, 1888. Wm. F. Herrin was the plaintiff's attorney. Just one month later Francis G. Newlands, as trustee named in a trust deed which William Sharon had executed nine days before his death (convey- ing his vast estate in trust for his heirs), also brought a like suit in the same court to revive the original action, the defendants being David S. Terry and Sarah Althea Terry; Wm. F. Herrin being the attorney. Stanly, Stoney & Hayes appeared as attorneys for the defendants and demurred. The demurrer was overruled, and the original suit of William Sharon against Sarah Althea Hill was, by order entered September 17, 1888, revived in the name of Frederick W. Sharon, as executor, against David S. Terry and Sarah Althea Terry. In the second suit to revive there were united with Mr. Newlands as complainants Frederick W. Sharon (both as executor and individually), and William Sharon's heirs. In these cases briefs were filed on the Sharon side by R. S. Mesick and Samuel M. Wilson. Wm. F. Herrin submitted a written argument of 120 printed pages octavo on that side. David S. Terry made an oral argument in reply; John A. Stanly also. The cases came before the Circuit Court for determination on the 3d of September, 1888, the judges sitting being Field, j^awyer and Sab'n. The doctrine was laid down that when a Federal court and a State court may each take jurisdiction of the same subject matter and parties, the tribunal whose jurisdiction first attaches will retain it to the final determination of the controversy. The opinion was written by Justice Field. We quote : The great question in both cases was the genuineness of the alleged marriage contract — the holder, Sarah Althea. affirming its genuineness, and the alleged signer, William Sharon, asseverating its forgery. Both have accompanied their statements with their oaths. Both have not testified to the truth; there is falsehood on one side or the other. Tlie burden of proof was on her, and the learned Judge of the State Court often speaks of testimony offered by her in terms of condemnation. In one passage he says of certain testimony given by her : "This is unimportant, except that it shows a disposition which crops out occasionally in her testimony to misstate or deny facts when she deems it of advantage to her case." Again, with respect to alleged introductions of her to several persons as the wife of Sharon, the Judge says : "Plaintiff's testimony as to these occasions is directly contradicted; and in my judg- ment her testimony as to these matters is willfully false." As to her testimony that she advanced to Sharon in the early part of her acquaintance $7,500, the Judge says : "This claim, in my judgment, is utterly unfounded. No such advance was ever made." Again the court said : "The plaintiff claims that the defendant wrote her notes at different times after her expulsion from the Grand Hotel. If such notes were written, it seems strange that they have not been preserved and produced in evidence. I do not believe she received any such notes." Again, a document purporting to be signed by Sharon was produced by her, explaining why she was sent from the Grand Hotel in the fall of 1881, and also acknowledging that the money he was then paying her was part of $7,500 she had placed in his hands. The production of the paper for inspection was vigorously resisted, but it was finally produced. At a subsequent period, when called for, it could not be found. Of this paper the Judge . said : History of the Bench and Bar of California. 181 "Among the objections suggested to this paper as appearing on its face, was one made by counsel that the signature was evidently a forgery. The matters recited in the paper are, in my judgment, at variance with the facts which it purports to recite. Considering the stubborn manner in which the production of this paper was at first resisted, and the mysterious manner of its disappearance, I am inclined to regard it in the light of one of the fabrications constructed for the purpose of bolstering up plaintiff's case. I can view the paper in no other light than as a fabrication." There are several other equally significant and pointed passages expressive of the character of the testimony produced in support of her case. Of what she attempted, the Judge thus speaks : "I am of the opinion that to some extent plaintiff has availed herself of the aid of false testimony for the purpose of giving her case a better appear- ance in the eyes of the court ; but sometimes parties have been known to resort to false testimony, where, in their judgment, it would assist them in prosecuting a lawful claim. As I understand the facts of this case, that was done in this instance." Not- withstanding this characterization of parts of her testimony, the genuineness of the alleged marriage contract rests to a great extent upon her testimony. It would seem that the learned Judge reached his conclusions without due regard to a principle in the weighing of testimony, as old as the hills, and which ought to be as eternal in the administration of justice, that the presentation knowingly of fabricated papers, or false evidence, to sustain the story of a party, throws discredit upon his whole state- ment. It is generally deemed equivalent to an admission of the falsity of the whole claim. The opinion concluded with these words : The judgment of this court is that the demurrers in both cases be overruled; that in the first case the original suit of William Sharon against Sarah Althea Hill, now Sarah Althea Terry, and the proceedings and final decree therein stand revived in the name of Frederick W. Sharon as executor, and against Sarah Althea Terry and David S. Terry, her husband — the said executor being substituted as plaintiff in the place of William Sharon, deceased, and the said David S. Terry being joined as defendant with his wife, so as to give to the said plaintiff executor as aforesaid the full benefit, rights and protection of said final decree, and full power to enforce the same against the said defendants at all times, and in all places, and in all particulars. In the second case, that of Francis G. Newlands, trustee, and others, beneficiaries under the trust deed, the defendants will have leave to answer until the next rule day. During the reading of this opinion in the presence of a large audience, in which were many leading members of the bar and prominent citizens, occurred the most remarkable instance of contempt known to the annals of American courts. Statements describing it were subscribed and sworn to by Joseph D. Redding, now of the New York bar; Alfred Barstow, and J. H. Miller, well-known lawyers; General Thomas B. Van Buren (a name widely known) ; W. W. Presbury, John Taggart, N. R. Harris, A. L. Parish, deputy I7nited States marshals ; Henry Finnegass, the noted government detective ; the United States marshal ; Henry Finnegas, the noted government detective ; the United Glennon, police officers, who were sent to the court-room by the captain of police, I. W. Lees. Officer Bohen prefaced his account with the words that Captain Lees had said that he had just learned that the decision was about to be rendered in the Sharon case, and if it should be against the Terrys, that they (the Terrys) might make trouble, and that we should render any assistance that might be needed in preserving the peace. We need only give the statement of Marshal Franks, which was substantially corroborated by all the others just named. It is as follows: 182 History of the Bench and Bar of Calif ornia. I am and have been since IMarch. 1886, the United States marshal for the northern district of California. On the 3d day of September, 1888, I was standing where I usually stand in the court-room, on the west side of the railing enclosing the place where the clerk of the court sits, while Judge Field was reading his decision in the case of Sharon vs. Terry, Judge Terry and his wife, Mrs. Terry, sat at the large table for attorneys in front of the railing around the clerk's desk, they being to m> left, Mr. Terry being farther away from me. Judge Field had read for a few minutes when I\Irs. Terry stood up, interrupting the court, and said, among other things. "You have been paid for this decision." Judge Field then ordered her to keep her seat, but she continued, saying, "How much did Newlands pay you?" Then Judge Field, looking towards me. said, "Mr. Marsha', remove that woman from the court- room." Mrs. Terry said, in a very defiant manner, "You cannot take me from *^he court." I immediately stepped to my left to execute the order, passing Judge Terr\ to where Mrs. Terry was standing. Mrs. Terry immediately sprang at me, striking me in my face with both her hands, saying, "You dirty scrub, you dare not remove me from this court-room." Mrs. Terry made this assault upon me before I had touched her. I immediately moved to take hold of her, when Judge Terry threw himself in my way, getting in front of me, and unbuttoning his coat, said, in the most defiant and threatening manner, "No man shall touch my wife; get a written order," or words to that effect. I put out my hands towards him, saying, "Judge, stand back ; no written order is required": and just as I was taking hold of Mrs. Terry's arm. Judge Terry assaulted me. striking me a hard blow in the mouth with the right fisl. breaking one of my teeth, and I immediately let his wife go and pushed him back. He then put his right hand in his bosom, while at the same time Deputy Parish, Detective Finnegass and other citizens, caught him by the arms and pulled him down in his chair. I caught hold of ]Mrs. Terry again. Mr. N. R. Harris, one of my deputies, coming to my assistance, and we took her out of the court-room into my office, she resisting, scratching and striking me all the time, using violent language, denouncing and threatening the judges and myself, claiming that I had stolen her diamonds and bracelets from her wrists, and calling several times to Porter Ashe to give her her satchel, I, during the whole time, using no more force than was neces- sary, considering the resistance made by her, addressing her as politely as possible. When we got her into the inner room of my office, I left her in charge of Mr. Harris, went into the main office, saw a body of men scuffling at the door, heard Deputy Marshall Taggart say, "If you attempt to come in here with that knife, I will blow your brains out." I said, "What, has he a knife?" Deputy Farish answered and said, "He had a knife, but we took it away." I then took hold of Judge Terry, and with the assistance of others, pulled him in the main office and shut the door. I had him and his wife placed in my private office in charge of Deputy Marshals Harris, Donnelly and Taggart. I then went into the court-room, and when I had been there but a short time, Mr. Farish came in and said, "Mrs. Terry wants her satchel, which Porter Ashe has." I went into the corridor and found Mr. Ashe with the satchel. I requested him to hand it to me; at first, he refused, saying that it was Mrs. Terry's private property, and he was going to deliver it to her. I told him she was my pris- oner, and her effects should be in my custody, and if he did not give the satchel up I would place him under arrest. He then gave it to me. and I told him to come with me into my office, and I would open it in his presence. He did so. and I opened it and took therefrom, a self-cocking 41-calibre Colt's pistol, with five chambers loaded, the sixth being empty; after which I delivered the satchel to Mrs. Terry. Mr. Ashe then said he did not intend to give the satchel to her with the pistol in it. I append hereto a photograph of the bowie-knife taken from the hands of Judge Terry by a citizen, with the assistance of my officers, and handed to me by the citizens, and also a photograph of the pistol taken from Mrs. Terry's satchel, both photographs exhibit- ing the actual size of these weapons. All this occurred in the Appraisers' Building, corner of Washington and Sansome streets, in the presence of and within the hearing of the United States Judges, while they were delivering the decision. I noticed Judge Terry and his wife during the reading of the opinion, and, as some History of the Bench and Bar of California. 183 points were being decided against them, I carefully observed them before I com- menced to remove Mrs. Terry from the court-room, and there was no word or act that I observed on the part of Judge Terry to restrain his wife in her conduct, or to take her from the court-room, or to assist me in doing so. On the contrary. Judge Terry resisted me with violence, as I have stated. After Judge Terry was placed in my inner office, as I have above stated, he used very abusive language concerning the Judges, referring to Judge Sawyer as "that corrupt son of a ," and also saying, "Tell that bald-headed old son of a Field that I want to go to lunch" ; and after the order was made committing him six months for contempt, Judge Terry said: "Field thinks that when I get out, he will be away, but I will meet him when he comes back next year, and it will not be a very pleasant meeting for him." Mrs. Terry said several times that she would kill both Judges Field and Sawyer. J. C. FRANKS, Subscribed and sworn to before me this 17th day of September, A. D. 1888. F. D. MONKTON. Commissioner U. S. Circuit Court. Judge Terry's statement of what occurred is as follows : I made no, resistance to any order, and the record is a lie. I was sitting down when my wife interrupted Judge Field, and when he said, "Marshal, remove the woman from the court-room," I rose to take her out. As the marshal came towards me I said, "Don't touch her. I will take her out of the court-room." Marshal Franks yelled out, "I know my business," and grabbing me by the lapels of my coat, tried to force me back into my chair. Two others seized me by the shoulders and forced me down. Again I said, "I will take her out." The men who were bending me back hurt me, and I wrenched myself free and struck at Franks, the blow hitting him in the mouth. I struck at hi.ni because he assaulted me without any right or order of the court. By that time ihey had dragged Mrs. Terry out of the court- room. Then their duty ended. They had obeyed the order brutally. The order was to take her out of the court-room, and she had been taken out. But that was not enough. They dragged her to a room and shut the door. I heard her scream and went to her. I was a free man and she legally a free woman. I had a right to be by her side. They had no order to lock her up or keep me from her. But they barred the door, and to scare them away I drew my knife. I told them I did not want to hurt any of them, but they pulled out their pistols. I could have killed half a dozen of them if I had wanted to. Two of them had pistols pointed at me. Some one said, "Let him in if he will give u\) his knife." I said, "Certainly," and gave up my knife. They did not take it from me. One of them, a man named Taggart, said in my presence that he would have shot me if ^ had not stopped. I told him that he would not dare to shoot me, and that if he wanted to shoot he would have a chance. Then he said he did not want to have any trouble with me. and I told him not to brag after it was all over, about what he would have done. The fact is, the court was frightened of something, and had the room full of deputies and fighters of all kinds who wanted a chance to make a showing of bravery, and after it was all over Judge Field lied in the record. I want to get him on the witness-stand to repeat his story, and then we will sec if there is any law against perjury. The coiu't convened at 2 o'clock i'. M. of the same day, Septeniher ^^, iSSS. The defendants were not present. .\n four judges occupied the hench. and Judge Field at once read an order adjtidging the defendants guihy of con- tem])t, and directing ihcir iniijrisonnienl in the Alameda county jaih Terry for six months, and Mrs, Terry for thirty days. They were placed in that jail hy the marshal at seven o'clock on the evening of the same day. and served out their sentences. A petition of Judge 'Perry just two weeks afterwards for a revocation of the orders of ini])risonnient, and which he had heen inllncnced 184 History of the Bench and Bar of California. to make by ex-Supreme Judge Heydenfeldt, was denied. It was on the hear- ing of this petition that the sworn statements of eye-witnesses before referred to, were read. We give this on the authority of Mr. Wagstaff : J. H. O'Brien, of Stockton, an old-time friend, visited Terry in the Alameda jail. Terry said: "When I get out of jail, I will horsewhip Judge Field. He will not dare to come back to California, but the earth is not big enough to hide him from me." Judge Field was required by law to "come back to California," in the sphere of his high office. These quoted words were from a man, admittedly honest and brave, who ''never made idle threats." Judge Field did come back to California, and for the same reason that always brought him — to hold court. Judge Terry's biographer is to be quoted again now, as to the conduct of the defendants after their release from jail : On one occasion, as Judge and Mrs. Terry were on their way from Los Angeles, where he had been attending the sessions of the United States Circuit Court, they happened upon the same train which Judge Lorenzo Sawyer was. During the trip Mrs. Terry assaulted Judge Sawyer by pulling his hair. This act was witnessed by one of the Superior Judges of Los Angeles, who was a passenger on the train, and it was reported to the authorities at Washington, and noted in connection with otl^r threats which had been made against Field and Sawyer. * * * * Letters passed between the United States district attorney and the attorney- general, which finally resulted in an order instructing the United States marshal to provide a body-guard to protect Justice Stephen J. Field during his sojourn on the Pacific Coast from threatened assaults and insults by Judge Terry. Sufficient evidence had accumulated (the italics are ours — Editor) to make these precautionary measures necessary, and the greatest secrecy was observed in order to prevent Terry from being provided with any knowledge of their existence. Mr. Wagstaff thinks that the authorities ought to have "advised" Judge Terry of what they were about. The letter of instructions from the attorney-general to the marshal was as follows : Department of Justice, Washington, D. C, April 27, 1889. John C. Franks, U. S. Marshal, San Francisco, Cal. — Sir: The proceedings which have heretofore been had in connection with the case of Mr. and Mrs. Terry in your United States Circuit Court have become matters of notoriety, and I deem it my duty to call your attention to the propriety of exercis- ing unusual caution in case further proceedings shall be had in that case, for the pro- tection of his honor, Justice Field, or whosoever may be called upon to hear and deter- mine the matter. Of course, I do not know what may be the feelings or purposes of Mr. and Mrs. Terry in the premises, but many things that have happened indicate that violence on their part is not impossible. It is due to the dignity and independence of the court and the character of its Judges that no efifort on the part of the govern- ment shall be spared to make them feel entirely safe and free from anxiety in the discharge of their duties. You will understand, of course, that this letter is not for the public, but to put you on your guard. It will be proper for you to show it to the district attorney, if deemed best. W. H. MILLER, Attorney-General. Mr. Wagstaff, in speaking of the letter of Attorney-General Miller to Marshal Franks, remarks that the attorney-general was a stranger to the true History of the Bench and Bar of California. 185 character of the man (Terry) — which seems to be an intimation that the official order for Judge Field's protection was hardly necessary. But he adds, in the very next sentence but one, that the attorney-general "was made aware of the fact that Terry never made idle threats and was fully aware of the fact that it was his duty to protect the judiciary" ; which is a demonstration that in writing his letter to the marshal the attorney-general did just what he ought to have done. We will let Mr. WagstafT lead the reader up to the catastrophe : Marshal Franks appointed David Neagle a deputy United States marshal, and assigned him to the position of body-guard to Justice Field during his sojourn on the Pacific Coast. Neagle had the reputation of being a rash, brave man, having figured as a hero in Arizona among the "toughs" of that territory who have given it an unenviable notoriety. He had also gained some notoriety in San Francisco among the politicians. He accepted the position and accompanied Justice Field to Los Angeles on the loth day of August, 1889, where Field held court in connec- tion with Judge Ross. On the 14th of August, Field left Los Angeles for San Fran- cisco with Neagle. As the train passed Fresno, Judge and Mrs. Terry went aboard for the purpose of being present at the hearing of the cases against them in the Circuit Court. They were not aware of the presence of Judge Field on the train, believing he had passed through the day before. The train passed Fresno at 2 :30 A. M., and there being no room in the sleeping car, Judge and Mrs. Terry took seats in a regular passenger car. Neagle was on the alert, and saw the Terrys when they took the train. He immediately informed Justice Field of the fact, and when the train arrived at Merced he telegraphed for an officer to be on hand in case trouble should occur. When Judge Terry was at the depot at Fresno, just before the train arrived, his former partner, W. D. Grady, handed him a pistol, saying, "Take this, Judge ; you may need it." "No," said the Judge, "I have no use for a pistol ; I never carry one." "Well," said Grady, "I want you to take it ; you may need it, for I feel I would never see you again." Terry took the pistol and gave it to his wife, just as they stepped aboard the train. At Modesto, Sheriff R. B. Purvis took the train, but not at the suggestion of Neagle, or having in his keeping the fact of the presence of the parties upon whom so much anxiety centered. The train stopped at Lathrop for breakfast, and Justice Field, although having been made aware of the presence of Judge and Mrs. Terry, and having been warned by Neagle, who proposed having breakfast served in the buffet, concluded to take breakfast at the station, remarking that he had eaten at the station before, and had gotten a good meal. Judge Field left the car, and, in company with his body-guard, was taken to a seat at a table near the center of the dining-room, facing toward the door. The dining-room is quite large, having three rows of five tables in each row. Field occu- pied a chair at the corner of the third table in the middle row, and Neagle next on his left. Soon after they were seated. Judge and Mrs. Terry entered, and the steward showed them to seats at a table at the rear end of the dining-room m the same row. In going to this table they passed down the aisle in front of Judge Field. Terry did not observe Field as he passed, but Mrs. Terry saw him, and, without taking a seat, she spoke to her husband in an undertone, and. turning about, passed out of the dining-room toward the cars. Observing these movements, T. M. Stackpole. one of the proprietors of the station eating house, knowing all the parties and the bitter feud existing between the Terrys and Justice Field, and also the vindictive and irrepressible character of Mrs. Terry. walked to where Judge Terry was sitting, and said : "Mr. Terry, I hope Mrs. Terry will not be so indiscreet as to create a disturbance in the dining-room." 186 History of the Bench and Bar of California. Judge Terry, who was until this time unconscious of the presence of Justice Field, inquired what he meant. "Justice Field is in the room." he replied, "and I feared Mrs. Terry would create a disturbance, as she has gone out to the car for some purpose. Do you think she will do so?" "I think it very likely," replied Terry. "You had lietter watch her at the door and prevent her from again entering the room." Mr. Stackpole did as Terry suggested, and placed two men at the door to inter- cept Mrs. Terry, should .she again seek to enter the dining-room, and as he walked to his place at the door leading from the dining-room to the bar-room, Judge Terry arose from his seat and walked toward the door as though he were following his manner was such that no one supposed that he meditated any disturbance, and even Neagle. who was on the alert, did not realize that he was about to make an assault on Field. He passed Neagle, but when he arrived at a point immediately behind Field, he stopped, turned about, and stooping down over him, deliberately struck him on the right cheek with the palm of his hand, and then quickly struck with his left hand, which hit Field on the side of the head, as he had turned his head to look up. Neagle was quick to act, and without rising from his seat, drew his pistol with his left hand, holding the barrel in his right to be sure of his aim, and shot Terry, inflicting a mortal wound. Judge Terry expired at once. Nearly four years after Sharon's death, the appeal which he had taken from Judge Sullivan's order denying a new trial, was heard. On that appeal our State Supreme Court unanimously held against the plaintiff and reversed Judge Sullivan's judgment, Jndge Works wrote the opinion. This is to he found in the California Reports, Volume 79, at page 638. The court dwelt particularly upon the letters written by the plaintiff to Sharon, and upon some of her acts — for instance : After the plaintiff had been expelled from the Grand, and .ong after she had been denied access to the defendant's room, we find her begging Ki, the defendant's Chinese servant, to admit her to Mr. Sharon's room, her object being to work a charm on the senator by sprinkling a black powder around his chair, putting some white powder in his bottles of liquor, left open on the side-board, and also putting something between the sheets of his bed. For permission to do this, she paid the Chinaman five dollars, and promised him one thousand dollars more, and forty dollars per month for his life, in case she succeeded in working the desired charm on the senator. She desired to repeat these performances in the defendant's room. Ki became alarmed at the possibility of his master's liquor being poisoned ; told Mr. Sharon, upon his return home from Belmont next day, what had occurred, and refused to allow the plaintiflf to return for the purpose of repeating her powder performances, and thereby perfect- ing the charm. * * * * At one time she secreted herself and saw Sharon and another woman undress and go to bed together in his room, and afterward told it as a laughable joke, and this at a time when she testified she was his wife. Again, at another time, evidently when she began to think it necessary that she should have some proof of her intimacy with him, she secreted a young girl, not yet twenty years of age. and who seems then to have become a kind of confidante of hers, behind the bureau in his room, to see Sharon and herself go to bed together and hear what was said, and the girl remained there until they had retired and he had fallen asleep, and then crept out of the room. The defendant testified positively that the relation of husband and wife never existed between him and the plaintifif; that she was his mistress, for which he agreed to and did pay her five hundred dollars a month ; that the alleged marriage contract History of the Bench and Bar of California. 187 was never signed by him, and that he never addressed a letter to her as "My Dear Wife," and there was evidence strongly tending to show that the contract an(^ addresses to these letters were forgeries. It seems to us that this evidence shows conclusively that these parties did not live and cohabit together "in the way usyal with married people." They did not live or cohabit together at all. They had their separate habitations in different hotels. Her visits to his room and his visits to hers were occasional, and apparently as visitors. They had no common home or dwelling place. This did not constitute a living together or cohabitation. (Yardley's Estate, 75 Pa. St.. 207; Ohio vs. Connoway Township, Tapp. 58.) Their acts and conduct were entirely consistent with the meretricious relation of man and mistress, and almost entirely inconsistent with the relation of husband and wife. This decision of the Supreme Court was rendered on Jul}- 17, 1889 — about a month before the death of Judge Terry. On the loth of March, 1892, Mrs. Terry, the widow of Judge Terry, was adjudged insane by the Superior Court of San Francisco, and was committed to the State Asykmi for the Insane at Stockton. She is still a patient at the institution, and her malady, which was at first acute mania, has become chronic. Upon the going down of the remittitur from the original judgment grant- ing the divorce and from the order granting alimony and counsel fees, the plaintiff obtained judgment in the Superior Court against the executor of William Sharon, for $6,614 alimony, this being according to the modification by the Supreme Court of the original order granting alimony. From this second judgment the Sharon executor took an appeal, upon wdiich the Supreme Court reversed the judgment upon the ground that the decree of the United States Circuit Court, which had first obtained jurisdiction of the parties, was controlling, and that the plaintiff could not enforce her claim of marriage and for property rights incident thereto upon the marriage contract, which had been adjudged by the Circuit Court to be a forgery (84 Cal. 424) ; so that, as a result of this extraordinary litigation, Mrs. Terry never succeeded in recov- ering a single cent from U'illiam Sharon or his estate. The effect of the second and last decision of the State Supreme Court, from which we have quoted passages, was to reojjcn the whole case, so far as the jurisdiction of the State courts was concerned. Sharon had asked for a new^ trial in the case which Superior Judge Sullivan had decided against him. and a new trial was now granted. The executor of William Sharon. Frederick W. Sharon, appeared as his representative in the suit, and filed a supplemental answer. The case was tried in the Superior Court, before Judge James \\. Shaflcr. in July. t8qo, and on the 4th of August following the Judge lilcd his findings and conclu- sions of law as follows : That the plaintiff and William Sharon, deceased, did n(.t. on the _'5th of August, 1880, or at any other time, consent to intermarry or become, by mutual agreement or otherwise, hus1)an(l and wife: nor did they, theroalter, or at any time, live or cohabit together as husb;nid and wife, or mutually 188 History of the Bench and Bar of California. or otherwise assume marital duties, rights, or obhgation ; that they did not, on that day or at any other time, in the city and county of San Francisco, or elsewhere, jointly or otherwise, make or sign a declaration of marriage in writing or otherwise; and that the declaration of marriage mentioned in the complaint was false, counterfeited, fabricated, forged and fraudulent, and, therefore, null and void. The conclusion of the court was that the plaintiff and William Sharon were not, on August 25, 1880, and never had been hus- band and wife, and that the plaintiff had no right or claim, legal or equitable, to any property or share in any property, real or personal, of which William Sharon was the owner or in possession, or which was then or might thereafter be held by the executor of his last will and testament, the defendant, Frederick W. Sharon. Accordingly, judgment was entered for the defendant. An appeal was taken from that judgment to the Supreme Court of California, and on the 5th day of August, 1892, Sarah Althea Terry having become insane pending the appeal, and R. Porter Ashe, Esq., having been appointed and qualified as the general guardian of her person and estate, it was ordered that he be substituted in the case, and that she subsequently appear by him as her guardian. In October following the appeal was dismissed. (In connection with this article read the closing paragraphs of the sketch of Judge Field.) THE EDITOR. THE CALIFORNIA CODE OF LAWS & £& lifa ois t& & afe Sa tffe HISTORY of the BENCH anc/ BAR of CALIFORNIA ofpe^^^epe^e^c,^ The GREAT BRODERICK WILL CASE The estate of Senator Broderick, who fell in a dnel with Judge David S. Terry, in 1859, was administered upon in San Francisco. Before pro- ceedings ended they had engaged the attention of nearly every court of record in the city, the Supreme Court of the State, and lastly the Supreme Court of the United States. No heirs being known and no will being discovered, on September 21, 1859, General D. D. Colton, one of Broderick's seconds, who was a creditor, applied to the Probate Court for letters of administration upon the estate, but the next day Lewis P. Sage, the public administrator, made a like application pending the contest. The court, on December 14th follow- ing, appointed David P. Belknap special administrator. Mr. Belknap had charge of the estate for some ten months, when a paper was filed, purporting to be the last will and testament of the deceased, and pursuant to its pro- visions, letters testamentary were issued on October 20, i860, to John :\. McGlynn and A. J. Butler. The latter was a resident of New York city, and McGlynn acted as sole executor throughout. The alleged will was dated New York city, January 2, 1859 (Sunday). It was very brief, directing that, after all debts were paid, his friend McGlynn should receive $10,000, and "all the rest and residue of my estate, both real and personal, I give and bequeath to my friend, George Wilkes, of the citv of New York." Wilkes, McGlynn and Butler were nonn'nated as executors, to give bonds. The estate consisted almost wholly of real estate in the central part of San Francisco, and was appraised at $242,896.79 — a very large estate for that day. The personalty consisted of v$6409.59 in money, some gold speci- mens worth $571 .20, and in his box at the bankers' (John Sime & Co.), was the shattered gold watch that was the means of saving his life in the duel with Judge Smith. It was presented t<» him by the I Inward Fngine Company, of New York city, on the eve of his departure for California. On September 30, i86t, John McDonald, Mrs. John Tloward and Mrs. Philip Fogarty filed a petition setting up that they were next of kin of 210 History of the Bench and Bar of California. deceased, declaring that tlie alleged will was a forgery, and asking that the order of court admitting it to prol^ate be revoked. These parties did not press their application ^■ery far, and soon came to acquiesce in the proceed- ings and sale of the realty. On November 29, 1861. the attorney-general, Thomas H. Williams, on behalf of the State, and on the relation of Frank M. Pixley, Esq., attorney- general-elect, but not yet in office, filed in the Fourth District Court an infor- mation alleging that Broderick had died intestate, and without heirs, and that his estate had escheated to the State of California. On the same day he commenced, in the same court, a suit in equity to obtain an injunction against the sale of the estate by McGlynn and Butler. A temporary restrain- ing order was issued pending the information. On the hearing it was claimed 1)y the plaintiff that the forgery was accomplished after this manner: Butler, who was in this State when Brod- erick died and afterwards, conceived the job, and, going to New York, confed- erated with Moses E. Flanagan, James R. Maloney, George Wilkes, John J. Hoff and Alfred A. Phillips. Flanagan, wdio had been in the habit of using, by consent, Broderick's senatorial frank, wrote simulated signatures on several sheets of paper. Phillips w^rote the will above one of those signatures, and he and Hoff signed their names as witnesses. It was not disclosed where the alleged will was discovered. McGlynn, who was not charged with the forgery, was the only defendant who appeared. He denied, on information and belief, all the allegations of the complaint. His defense was that the \\\\\ was genuine, and that the decree of the Probate Court admitting the document to probate was final and con- clusive, and could not be questioned by any other court, under the statute which provided that, after the lapse of one year from the probate of a will the probate shall be conclusive. Judge Hager held that this statute did not preclude courts of equity from setting aside wills, the probate of wdiich had been procured by fraud. He said : It seems like an anomaly in law that by any course of reasoning, based on principle and legal authority, we should attempt to establish the validity of a forged will, which is of itself a nullity, or of its probate, procured by fraud and perjury; and if sucessfully done, i fear it would be a reflection upon our institutions and a stain upon our jurisprudence. It is urged that equity will not interfere, even if it be established that the will is a forgery, and its probate procured by fraud and perjury. If this be sound in principle and supported by authority, we deduce a controlling principle of law to the following effect: That if a person successfully consummates the forgery of a will, and by fraud and perjury gets it admitted to probate, and for one year .thereafter conceals the evidence of his crime, he may acquire an estate. If the legal heir be absent from the country, and does not know or hear of the death of his relative during the year following the probate, for the same reason he must lose his inheritance. The forger might be punished for the public offense, but he would hold the estate, and the heir would lose it. Public justice might be vindicated, but the inherit- ance would be despoiled, and our courts would be inadequate to grant relief. History of the Bench and Bar of California. 211 Such a principle would seem to be in violation of natural justice, absolute rights and public policy. I am not able to understand why a forged will should be placed upon any footing different from a forged deed. Having declared that the only satisfactory evidence in the case was that evinced by the will itself, Judge Hager proceeded : An inspection of the will discloses to the senses some peculiar phenomena, and many remarkable visible signs that are suggestive and circumstantially strong, against the probable truth of some of the defendant's evidence. It is manifest to the ej^e that, in the signature "D. C. Broderick." and in the words "John J. Hoff, 131 and 133 Washington street, Hoboken, N. J.," the ink of the one is of a darker tint than that of the other, and that both arc much darker hued than the writing composing the body of the document and the certificate of V, attestation. In the last mentioned instance it is so demonstrable, upon mere inspection that I can hardly suppose the entire document and signatures were written on the same occasion, at the same table, and with the same ink. as we are led to infer was the case from the testimony of Phillips and Hofif. .' The will consists of one sheet of letter paper ; the signature is on the third |; line of the second page, and is succeeded by the certificate of the subscribing \ witnesses. I The body of the will contains twenty-one lines of manuscript. Of these eighteen are entire lines, wthout interlineation. As the lines approximate the ' signature the letters become gradually and very perceptibly smaller, and the words are more condensed and crowded, and in the last line a few of the words are carried beyond the marginal line, which is the only instance where i<- occurs, either in the body of the will or the certificate. These phenomena, so remarkable and extraordinary, apparent on the face of the will, and established in some respects with the certainty of a mathematical demonstration, are unexplained, and. in view of the evidence, cannot upon any reasonable hypothesis be attributed to chance or accident. The ordinary manuscript of a scrivner would scarcely ever exhibit such marked peculiarities. If, however, as some of the evidence tends to indicate, the name D. C. Broderick was first written, and that alleged signature and the initial line on the first page formed a Procrustean bed, in which the body of this alleged will was placed and made to conform to it, we have a solution. The Judge ordered the injunction issned as prayed for. McGlynn appealed, and a memorable argument followed before the Supreme Court. Messrs. Hoge and Wilson represented the appellant, and succeeded in uplu'ld- mg the will. Judge Hager's injunction was dissolved. James B. Haggin represented the self-declared heirs-at-law, and Gregory Yale fought like a Titan for the lost cause. The following vigorous extract is from Yale's brief : The great effort is now and always has been since the accidental probate of this felonious paper, to take shelter behind a formal decree legalizing the felonious act. Will or no will, when propounded for probate it is claimed that it became an immaculate testament when solemnized by certain forms. Brod- erick may not have made a will, but Butler, with his co-conspirators, has secured the probate judge's name, if not D. C. Broderick's, to the paper, and no human power can detach it. This is the doctrine that this court is called upon to sanc- tion. Years and generations hence, the term of 1862 is to be signalized — as the forgers and speculators would decree it — as an epoch in the legal history of this great State, when its highest tribunal pronounced in favor of an unmiti- 212 History of the Bench and Bar of California. gated fraud, only because an inferior tribunal had sanctioned it, and because the law afforded no escape from its own machinations. Such reflections upon the law are unwarrantable, unworthy of any civilized code, and humiliating to listen to. The Supreme Court refused to interfere with the probate of the wih, on the ground that the decree of the Proljate Court (M. C. Blake, Judge), was final and conclusive, the statutory period of one year having elapsed since its probate, and not subject, except on an appeal to a higher court, to be ques- tioned in any other court, or be set aside or vacated by a court of equity on any ground. (20 Cal., 234.) The estate was accordingly sold, and distributed in pursuance of the terms of the "will" ! On April 20, nSjo, was filed another petition for the revocation of the probate of the alleged will, the petitioners being Ann Wilson and Ellen Lynch, alleging the paper was a forged one and declaring themselves to be the daughters of Catherine, only sister of Broderick's father, and residents of Australia. In October, 1872, the court dismissed the petition on the ground that it was barred by the statute, not having been filed within one year after the alleged will was probated. Mrs. Lynch, who was a widow, and Mrs. Wilson, and another sister, Mrs. John Keiley, the husbands of the last two joining, had already commenced suit in ecjuity in the United States Circuit Court in San Francisco, against McGlynn and the several hundred holders of the realty .under the sales. A demurrer was filed to this petition, wdiich the Circuit Court sustained. The petitioners appealed to the Supreme Court of the United States. Thereafter the Supreme Court of the United States ren- dered a majority opinion afifirming the judgment of the Circuit Court. In that highest tribunal the defeated claimants were represented by I. T. Williams and S. H. Phillips. Samuel M. W^ilson, of San Francisco, was alone on the prevailing side. He argued that a court of equity had no juris- diction 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 sev- eral California statutes of limitation. He made other contentions, but upon those just mentioned the case was then finally determined. It might here be remarked that, in public estimation, the so-called Brod- erick will has long since been pronounced a forgery; and in the history of enlightened jurisprudence, it stands as a solitary instance where a will alleged to be forged has been upheld because courts exercising equity jurisdiction were inadequate to give relief, even if the fraud should be established by proof. THE EDITOR. HORACE HAWES c^WILL CASE^ ■By THE EDITOR !^ •^ dfe t?« tSa e?^ 1^3 & & c^" HISTORY of the BENCH and BAR of CALIFORNIA "K- <^ s^ ^T' The HORACE HAWES WILL CASE Horace Hawes, eccentric lawyer, but useful legislator, author of the Consol- idation Bill, which in 1856 made the City of San Francisco and the County of San Francisco one body politic and corporate, came to California long before the gold-seekers — so early as April 4, 1847. He was prefect, or chief exec- utive officer, of the San Francisco district, 1849-50. He was an assembly- man in 1856; a State senator, 1863-64, and 1865-66; author, in addition to the Consolidation Act of 1856, of the Registry Law and the act creating the pres- ent Justices' Court of San Francisco, in 1866. He was born in New York in 181 3, and died in San Francisco, March 12, 1871. While holding the office of prefect, Hawes had a rupture with Governor Peter H. Burnett as to the best way of dealing with the town council of San Francisco, which claimed the absolute right to sell a large number of building lots owned by the city. The council had sold many lots, some of the mem- bers purchasing at the sales. Hawes in a proclamation expressly charged that "The members were both the sellers and the buyers." Governor Burnett suspended further sales "until the legislature should pass some act in reference to said lands." The Governor suspended Hawes, who on April 4. 1850, petitioned the lower branch of the legislature to impeach the Governor for usurpation of powers. The petition was presented to the assembly by Speaker John Bigler. at whose suggestion it was laid on the table; and it was never acted on. Mawes was perfectly honest in the controversy, and manifested great legal ability. This early episode in our history furnishes very engaging reading. (See Appendix to Proceedings of the Town Council of 1849-50.) Hawes, whether insane or not, made a judicious will, which would, if sustained, have ke])t his family in comff)rt all their lives, and would probably have lengthened their lives. He bequeathed to his widow $2500 per annum; to his only son, Horace, $3600 per annum; to his only daughter. Caroline, $3000 per annum; to his errand boy, Thomas E. Larkin. $500; to his sister, Lydia, wife of Russell Martin, certain lands and a mortgage in Buffalo, 216 History of the Bench and Bar of California. ■ New York; to Mrs. Mary Hawes, widow of Rev. Lawrence Hawes, $6000; and to Henry Ultman, banker, of Racine, Wisconsin, $6000 to be distributed to two brothers of testator, John and Isaac Hawes, and an aged aunt, ''and other aged near relatives, if any there be to his knowledge who need it.'' The whole of his handsome estate, w itli the exception of the few legacies just mentioned, he bequeathed to two institutions which he hoped to create, but which were never called into being — the Chamber of Industry to be at San Francisco, and the Mont Eagle University in San Mateo county. Albert Hart, first librarian of the San Francisco Law Library, was named as execu- tor, with Edward R. vSherburne as alternate, and the will was witnessed by Stillman N. Putnam and Alfred Clark. It was filed for probate April 11, 1 87 1. The estate was appraised at $401,000.00. There was one provision of the will that was carried out. Mrs. Hawes, after she had received letters of administration, erected over his grave in Laurel Hill, San Francisco, a block of red granite from Scotland, six and a half feet long, two and a half feet wide, and ten inches thick. It bears, by his request, in addition to the usual inscription, the words, "Author of the Consolidation Act and the Registry Law." The will also directed tliat, after the lapse of one hundred years, the granite slab should be replaced by a monument. Who will do this ? Nearly a third of the century has now passed ! On May 9, 1871, the widow, by General Barnes, J. C. Bates, and Alexander Campbell, filed a petition in contest of probate, based on the grounds: (i) that the instrument offered was not the last will of the deceased; (2) that Horace Hawes was not of sound and disposing mind, and was a person non compos mentis when the document was signed and long prior thereto; (3) that the document was not signed or attested as required by law. and (4) that if the alleged will was signed by Hawes, it was signed under restraint, undue influence and fraudulent misrepresentations. The trial of this case opened November 14, 1871, and lasted two weeks. Some ten (ir tweh'e attorneys appeared, but General Barnes was the prin- cipal counsel for the widow, while ex- Judge L. E. Pratt, afterwards district attorney, was his chief opponent. The proceedings on the trial were reported in full and ])rinted, making an octavo volume of 600 pages. Fifty-five wit- nesses were examined, many of them at great length. This great contest was watched with interest by the people of the whole Pacific Coast. The fol- lowing short extract from General Barnes' speech to the jury will give a glimpse of the character of the man whose will he was opposing on behalf of a worthy widow : Think of a man in hi.s senses telling a witness to take a book and write down in it every word he said; that after his death it wonld be jniblished, and a hundred years hence it would be read by more people, and with greater interest than the life and doings of Jesus Christ." Think of a man whose insane idea on the subject of his own greatness was such that when he read an account of a public meeting, and of a dinner where His Excellency the Governor of the History of the Bench and Bar of California. 217 State presided, and where the gentlemen drank each other's health, and toasted everybody, he lay the newspaper down and said, 'Neither Jesus Christ nor I was ever toasted.' Gentlemen, I hope that Mr. Hawes w-as an insane man, for if he was not, if all these acts and doings of his were the product of a sane mind, whatever complaint he may have made on the subject of not having been toasted on earth, he is getting plenty of it now. The jury were not long in agreeing upon a verdict for the contesting widow. The latter paid to General Barnes a fee of $30,000. On the 24th day of February, 1871, a fortnight before his death, Hawes executed a deed of real estate to Horatio Stebbins, the eminent Unitarian divine, and to Horace Davis, J. W. Britton, George H. Howard, and Edward P. Evans, in trust, for the establishment and maintenance of an institution for the diffusion of knowledge, to be called the "Mont Eagle University." In this deed Hawes reserved to himself an estate, coupled with the possession and the rents to continue for and during his natural life." Upon his death the grantors in trust took possession of the property. Mrs. Hawes sued them in the old Twelfth District Court, San Francisco, to recover the property. She obtained judgment, upon a demurrer to the answer, and the Supreme Court were of one mind in sustaining the lower court, except that Justice McKinstry did not take part in the decision. The court, by Justice A. L. Rhodes, held that in this State, following the common law of England, an estate of freehold cannot be granted to commence in futiiro without the creation at the same time of a particular estate, which vests the immediate estate in some other person; that a deed which conveys an estate of freehold to commence upon the death of the grantor, but reserves to the grantor the use, enjoyment and possession of the property, during his natural life, is void. Horace Hawes, Jr., the only son of Horace Hawes, was defeated by Hon. William T. Wallace for the assembly in the fall of 1882. He died at Red- wood City, December 19, 1884, leaving to his widow and two children an estate worth $200,000. Mrs. Hawes died at Redwood City in August, 1895. A writer of the time, while representing her as a kind, loving and gentle woman, said that she had spent her portion of the estate with a prodigality seldom excelled. We (juote : Young Horace, of whom his father had expected so much, was given large sums to spend at an age when he should have been in school. Early in his life his mother conceived the idea that Horace, Jr., should tour the world, which he did at an enormous expense, the Rev. H. E. Jewett traveling as his companion. When he returned his mother spent $25,000 in purchasing him a seat in the San Francisco Stock Exchange. So the money went until there was nothing left for her own use. Horace married the sister of the wife of Timothy Guy Phelps when he was only a boy. His wife was several years his senior. Horace had inherited some of his father's talent, but he never applied himself, and consequently entered no profession. When only 23 he conceived the idea that he would like to go to congress, but failing to secure the nomination he solaced himself 218 History of the Bench and Bar of California. later on by accepting the nomination for the State assembly. In this political campaign he exerted all the energy of his nature, but met defeat. His failure was an awful blow, and a very few days after the returns came in he was in bed with a deadly fever upon him. He lived only a short time, and even when the shadow of death was upon him he wept over what he termed the ingratitude of the companions of his boyhood, who had voted against him. His widow soon after his death married J. B. Schroeder. Caroline Hawes, the young and beautiful daughter, had a handsome dowry, after the will was broken, and when she was i8 she married James A. Robinson, the son of a distinguished pioneer. Shortly after his marriage he bought into the tea firm of Macondray & Co., and has prospered there ever since. Mr. and Mrs. James A. Robinson are prominent members of the 400 in San Francisco. After Mrs. Hawes had spent all of her wealth on her children and her friends she made the Robinson country seat at Redwood City her home. The change in her fortune never made her downcast. She seemed quite as happy in poverty, surrounded by her sweet-faced grai^d-children, as she ever had been while mis- tress of the big Hawes mansion, which came to be the property of Mrs. Moses Hopkins. THE EDITOR. LEGAL EDUCATION ^ e^ ejp 6^ W THE i^ ^ ^ STATE UNIVERSITY BY GUSTAV GUrSCH Gustaw Guhch ■23 h c& <'h t& tJ3 -ia cib & a HISTORY of the BENCH and BAR of CALIFORNIA cja ojp Of, o>r. c^) .^ ">!' "^ <«» * LEGAL EDUCATION in the STATE UNIVERSITY As an important factor in the development of the law of this State, the University of California demands special consideration. Hastings Law College had existed since 1878, and attained great influence under such able lawyers and teachers as John Norton Pomeroy, Charles W. Slack, Elisha W. McKinstry and others. But it was felt that in modern life, and particularly in this country, where every citizen takes more or less of an active part in the government of states and municipalities and in the enactment and application of the laws, the study of jurisprudence, at least in its general principles, should not be left to those alone who wish to make the law their profession, or to any particular class such as is still found in other countries, for instance in England, but that it should, and in the course of time imist, form part of the education of every well-bred man; for as the light of intelli- gence and knowledge spreads and extends to the great mass of the voters, it is evident that a government which is to satisfy the entire people must and ultimately will be entrusted to those educated and intelligent citizens who are able to understand the wants of the different callings, occupations, professions or trades, and to do justice to everybody. This cannot be accomplished by any special class of men trained in the law ; for the exclusiveness of a purely legal education unfits them, unaided, for a task of such scope and mag- nitude; and yet, as the law pervades every part of our political life, it will be necessary for every one, without exception, ])articipating in the proposing, framing, enacting or applying of our laws, to fully and clearly comprehend at least the general principles underlying those laws. Moreover, he should have a fair knowledge of the history of this country, and jierhaps of other countries, for historical experience is one of the best tests of sound legislation ; and the history of the civilized nations of modern times — which becomes more and more important as compared with the history of antiquity — is not. as his- tory was formerly, an account of wars and conquests or the succession of rulers, but a description of the inner progress and of the peculiar manners, customs 222 History of the Bench and Bar of California. and laws of each people, together with a comparison of the practical effects thereof shown in each case. These and' similar ideas led to a desire to emhody in the general courses of a higher education attainable in our State University an instruction in the his- tory and principles of the law which would he accessible to such of the students as were not able or, for any reason, did not wish to follow the lectures at the Hastings College, and also to those, who, before entering upon the more special and exclusive study of the law% might choose to complete their education in other departments of university knowledge. The development of a school of jurisprudence has been in the mind of Mr. William Carey Jones since 1882, when he was appointed instructor in United States history and constitutional law. In the same year he began a course on Roman law. A year or two later he undertook a more comprehensive course in jurisprudence, using Holland's text-book. In 1891 he introduced Inter- national Law. By 1892 he had succeeded in bringing into the university cur- riculum courses in Roman Law, International Law, Constitutional Law and the Principles of Jurisprudence. During the year 1892-93 he was given a leave of absence for study in Europe, having justified the existence and development of legal study in the academic colleges. In recognition of his work and of the- value of such a dei)artment, the regents in 1894 gave Professor Jones the official title of professor of jurisprudence, and he became the head of what has developed into a new and independent department. Through the untiring and energetic efforts of Professor Jones and tlie pop- ularity of his courses, the number of students in the new department grew very rapidly; and in 1898 it was resolved by the regents that graduates of the uni- \ersity who had satisfactorily passed certain courses, embracing the most important principles of the laws of real property, contracts, torts and crimes, as well as the history of common law, should, on the recommendation of the Department of Jurisprudence, be admitted to the middle class of the Hastings Law College, thereby shortening their regular term at the latter school by one year. Following out the original idea which led to the organization of the new department. Professor Jones, in conjunction with the board of regents, endeav- ored to give variety and at the same time a more universal scope to the study l)y interesting others in the plan. Among those who seemed best qualified to carry the same into further practical execution was Mr. Louis T. Hengstler, then assistant professor of mathematics at the imiversity and assistant professor of law in the Hastings College. The descendant of a family of lawyers in Germany, Mr. Hengstler had received his university education in that country. Not long after his arrival in California, in 1886, he was admitted to the bar by the Supreme Court and for several years was engaged in the practice of law at San Francisco. Being a mathematician, however, as well as a lawyer, he accepted a call to the University of California, which at first caused him to devote his entire attention to mathematics. But his love of the History of the Bench and Bar of California. 223 law could not be thus extinguished, and having, for a while, divided his time between the mathematical department of the university and the Hastings College of the Law at San Francisco, he was, in 1898. at his own request, as- signed to the new department, with the official title of assistant professor of jurisprudence, and given charge of the courses on elementary law, criminal law, torts, and on public and private international law. Next to Professor Jones him- self, the success of the latter's enterprise is mainly due to Professor Hengstler's good judgment and industry. The number of students availing themselves of the opportunity for widen- ing their general and special knowledge grew steadily, until it passed the num- ber of 300, enrolled in the various courses. New teachers were then sought and found. Curtis H. Lindley and Gustav Gutsch, both members of the San Fran- cisco bar, were prevailed on to give weekly lectures at Berkeley. Their engage- ment was "honorary" — as the university funds were then at ebb tide; — but no amount of pecuniary consideration could have increased the zeal and zest with which each of them devoted himself to his task, and no students ever listened to their teachers more attentively or with greater enthusiasm than those who attended the lectures of these two practical lawyers. Mr. Lindley (the author of the famous work on mines) chose for his principal subjects the public land system, the methods by which the government acquires and dis- poses of its lands, and the genesis, development and theories of the law of mines and the law of water as applied in A\"estern America ; and Mr. Gutsch (who enjoys the distinction of being the only J. U. D., doctor of civil and canon law, of the San Francisco bar) successfully illustrated the idea that nothing is more conducive to a full and critical understanding of our own laws than a comparison with the principles and development of foreign laws by engaging his listeners in a close study of the history of modern European codification and in a comparison of the leading principles of domestic and foreign pro- cedure. With such men at work, and such interest in the ne^^■ department shown on all sides, the latter is certain to make its influence felt and to aid most mate- rially in raising the scientific standard of the ])rofession throughout the State. GUST Ay GUTSCH. San Francisco, Cal. THE FIELD OF HONOR "BY 7HE EDITOR &&A(S3 1& & & sli tjia i3e HISTORY of the BENCH ^nd BAR of CALIFORNIA The FIELD of HONOR JAMES W. DENVER AND EDWARD GILBERT AND THEIR FATAL DUEL IN J 852 This fatal meeting took place as early as August 2, 1852. It was the most notable duel that occurred in California prior to that between Johnston and Ferguson, in August, 1858. Truman's "Field of Honor" does not give the date, l)ut the account there found is nearly correct. This duel caused more sensation and sorrow throughout the State than any other before or since, excepting that of Terry and Broderick in 1859. Like all the single combats that threw the State into alarm, it was between leaders of opposing political parties. We will reproduce, first. Major Truman's narration : A description of the fatal meeting between Hon. Edward Gilbert (at the time editor-in-chief of the Daily Alta California) and General James W. Denver (then secretary of State of California) is presented as one of the most dramatic and conspicuous affairs of this character. The legislature of California, at its session of 1852, had passed a bill to provide for the sending of relief to over- land emigrants who might be in a destitute condition, or exposed to danger from hostile Indians. Tliis bill re(|uired the governor, who had made the recommendation to the legislature, to raise a company and supply trains suffi- cient to meet the necessities which might exist during the season. The governor had obeyed these instructions, and had marched in front of the train through the capital of the State as it was setting out upon its humane expedition. Mr. Gilbert vigorously opposed this whole measure, frankly stating that he believed the movement was designed for the purpose of making political capital, and that it would be a heavy expense to the State, and render little aid to the emigrants. When the press announced the departure of the supply train, and complimented the governor, who escorted it out of Sacramento, Mr. Gilbert ridiculed the parade and the show that was made about it, and intimated that the whole thing was projected to increase the governor's popularity. General Denver, who was connected with the relief train, and who was a personal friend of Governor Bigler, replied to Mr. Gilbert's articles by publishing a card, in which he made use of unmistakably discourteous language. Mr. Gilbert replied, and General Denver retorted. A challenge was immediately sent to (Jcneral Denver, and accepted, and rifles selected as weapons. Mr. Gilbert fell at the second shot and 228 History of the Bench and Bar of California. expired in less than five minutes. The victim was a native of Albany, New York, and was a member of the convention to form the constitution for the State of California, and immediately after her admission into the Union was chosen a representative to congress. He was only thirty-three years of age at the time of his death, had been a pioneer of the daily press of San Francisco, and was an earnest if not brilliant writer. The author has carefully perused a great many accounts of this melancholy affair, which agree, in the main, with the foregoing. In 1880, General Denver's name was mentioned in connec- tion with the Democratic nomination for the presidency, which prompted the New York Herald to reproduce a description of this episode in Denver's life, which it is presumed should or would handicap Denver for such eminent prefer- ment. This article was replied to by Mr. W. A. Cornwall, of San Francisco, as follows, in a communication to that paper: "The San Francisco Bulletin republished an article from the Herald, in which General James W. Denver is mentioned as an eligible candidate for the presidency. In it reference is made to the fact that at the time Denver was secretary of State of California, he engaged in a duel with Edward Gilbert, who was then editor of the .llta California. The article is prejudicial, because it does not detail the circumstances connected with that fact and the deplorable duel. The incident of which it was the result was an article published in the Alta-California respecting a family named Donner, which perished en route in its attempt to emigrate overland to California in 1850.* The State, learning of the distress of the emigrants, provided means for their relief; and the duty of dispensing it was delegated to the secretary of State. This was prompt and humane, but it was bitterly criticised and sharply assailed by Gilbert. Denver is a clear-headed, sound man. sensitive and brave. He retorted, and his retort was terrible. Gilbert, who was a member of Colonel Stevenson's New York regiment, challenged Denver, and the parties went upon the field. The weapons were rifles, at short range ; and I assert, as a witness, that no man in the tide of all the centuries, ever displayed a more dauntless temper than Denver. He knew that Gilbert was a brave soldier, and that he was reckoned to be a deadly shot. Nevertheless, Denver reserved his fire, and purposely threw away his own. Happily, Denver escaped untouched. Every effort was then made by the seconds and by mutual friends for peace; Gilbert was informed that his antagonist wished to clasp hands, but Gilbert refused the request in terms which showed his friends that he had determined to kill Denver. TTie principals returned to their positions. "Now," said Denver, in a tone I shall never forget, 'T must defend myself." And at the word Gilbert fell, pierced through the heart. "I assert that no man more than Denver disdains this deadly mode of arbi- tration, but Washington himself would have defended his own life. He oft'ered it, like Denver, to his country. He would have defended it as a trust and legacy from the Creator. He was an impersonation of the great thought, Duke et decorum est pro patria mori." In 1884, General Denver's name was again mentioned in connection with the Presidential nomination, and Judge Edward McGowan, on the 17th of April, 1884, wrote as follows from Washington to the San Francisco Evening Post: "In my obituary notice of the late Judge McCorkle I inadvertently referred to the duel between General James W. Denver, now a resident of this city, and * The year was 1852 ; and it was not the Donner party. Their year was as early as 1847, and they did not all perish. See our sketches of William G. Murphy and Judge James F. Breen. — EDITOR. History of the Bench and Bar of California. 229 Edward Gilbert, founder of the Alta California of your city, which took place over thirty years ago at "The Oaks," forty miles from Sacramento.* General Denver will be a candidate for President before the Democratic National Con- vention, which will meet in Chicago on the 8th of July, and the old story of censure, which was cast upon him by the anti-duellists and the friends of Mr. Gilbert at the time the affair came off, has been revived in certain circles in this city to his great detriment, although he was not altogether to blame for the taking off of Mr. Gilbert, as every opportunity w-as afforded Gilbert's friends by the friends of General Denver for a settlement of the difficulty without a further resort to arms, after one shot had been exchanged between the parties without either being hit. At the time of the duel General Denver was secretary of State, under the administration of the late Governor John Bigler. The meeting was caused by a severe article in the Alta California, an opposition press, criticising the conduct of the governor in appointing General Denver to the head of the expedition over the mountains for the relief of the emigrants. This was at the time a position of the most difficult and responsible character. Denver replied to these strictures of the Alta in pretty severe terms, and Mr. Gilbert, being the responsible editor, sent a challenge. General Denver threw his first shot away — ^being an expert with the rifle, although his opponent was no novice in the use of firearms. After the first fire a proposition was made by the friends of the challenged party to adjust the affair. This the friends of Mr. Gilbert refused to assent to. General Denver then threw off his coat and took his position, making a remark to one of his friends — Dr. Wake Brierly — about "not standing here all day to be shot at." At the second fire Mr. Gilbert fell dead — pierced through the heart by a bullet from his opponent's rifle. Mr. Gilbert himself would not agree to a settlement, fearing he w'ould be com- promised. He had had a previous difficulty with John Nugent, editor of the San Francisco Herald, and the affair was adjusted without resorting to the field of honor, and it was reported that Mr. Nugent had the best of the settle- ment. If this were true, it was a wrong settlement. All adjustments of affairs of honor should be made without casting a shadow of doubt upon the standing of either partj' as a gentleman and man of courage. General Denver was elected to congress' from California, serving in that body in the year 1855-6. His col- league was Colonel Philemon T. Herbert, who since received his death-wound at the battle of Mansfield, Texas, while in command of the Seventh Texas. Denver was also appointed governor of the territory of Kansas, by President Buchanan, during 'border-ruffian' days. His predecessors during the contests of the free-state and pro-slavery men for the supremacy in that territory in those bloody days of that internecine strife, were Robert J. Walker, Edwin M. Stanton, ColoneL John W. Geary, first mayor of San Francisco, and Wilson Shannon, afterward a resident of California. All of these men had wrought faithfully, in vain, in the work of pacification, and had either thrown up the task in despair, or had been removed by the President for inefficiency. While governor of Kansas, Denver held the respect of the free-state men ; and the late Albert D. Richardson speaks of him in his well known work, 'Beyond the Mississippi.' He says: 'Though a Buchanan Democrat, Denver proved more fair and just than any previous governor of Kansas. During the rebellion he won a brigadier-generalship in the Union service, and the thriving metropolis of Colorado still perpetuates his name.' He is now president of the Mexican Veteran Association, and did good service among his congressional friends for the passing of a bill for a pension to the Mexican veterans, which bill the house passed this session." Tn commenting on the departure of tlie relief train, the Alta, of June 26, 1852. said : *Only six mWts.— EDITOR. 230 History of the Bench and Bar of California. "Previous to their departure, the train, consisting of eight wagons, was paraded through the principal streets of Sacramento with a lar^e placard on each, bearing in enormous capitals the words, 'The California Relief Train.' Governor Bigler was silly enough to make himself ridiculous by riding on horse- back at the head of the procession ; and it only needed the addition of an ear- splitting brass band to have made people believe it a parade of newly arrived groiind-and-lofty tumblers, or a traveling caravan of wild animals." Nearly a month after this article appeared General Denver, who had accompanied the train for a part of it.s journey, intending to remain with it during the fall of the year, had inserted in the Sacramento Democratic State Journal of July 24th. a card signed by himself, and the ten other members of the relief train. In this they set forth that they "had read with indigna- tion a statement of the Alta California, in which it is made to appear that Governor Bigler had made himself ridiculous," etc. They further declared, "We are well satisfied that none but a personal enemy could imagine any such thing, and that enemy must be of the smallest possible caliber, who could descend so low as to pervert facts," etc. The Alta of July 26th returned to the attack by publishing an article under the heading of "Governor Bigler's Attempt to Manufacture Political Capital Out of the California Relief Train." In this article the paper reiterated its statements of June 26th. and added : "If any gentleman attached to the train, or any other friend of the governor, desires to make issue upon the matter, they know where to find us." Denver replied by a communication to the Democratic State Journal of July 29th, in which appeared the following passage : "If the editor of the Alta thinks himself aggrieved by anything I have said or done, it is for him to find me, and when so found, he can rest assured he can have any 'issue upon the matter' he may desire. Lest he shall have an excuse that he did not know where to find me, I will state that during the summer I shall be engaged with the Relief Train, and on the first Monday in January next I expect to be in Vallejo." This called forth a personal letter from Gilbert to Denver, in which the former stated that he was the author of both articles that had appeared in the Alta. and concluded by saying: "I find it my duty to demand from you a withdrawal of the ofifensive and unjust charges and insinuations which you have made." Denver immediately replied that "not one word of the cards you allude to can be withdrawn by me. until the articles calling them forth have been with- drawn by you." We take what follows from a well-written story which appeared in the San Francisco Post, October 5th, 1895: The aflfair had by this time assumed a serious phase. Gilbert sought out his friend. Henry F. Teschemacher, and requested him to tender a challenge to Denver. Teshemacher was a man of the highest standing, afterwards being elected mayor of San Francisco. On the receipt of the challenge Denver named Vincent E. Geiger as his second. At sunrise on Monday, August 2, the duel took place. It was one of the most beautiful of midsummer mornings, and as the rays of sunlight filled the sky, nature seemed to awaken everywhere, and soon the world was filled with History of the Bench and Bar of California. 231 joyous sounds, which little befitted the tragic scene about to be enacted. The preliminaries were quickly arranged, the distance named being forty paces. As the principals came upon the field and faced one another, they met for the first time. Both were unflinchingly brave men — Denver willing to make peace or fight to the death, and Gilbert possessed of a stubborn determination that nothing but blood should atone for what had passed. Denver's second won the word, and the first interchange of shots quickly followed. Both men missed their marks; both stood uninjured. The sun was now well up, and in the full glory of the newborn day the two men stood ready, waiting for the second shot. The word was given, and almost immediately Gilbert fell. General Denver was uninjured. All quickly gathered about Gil- bert as he lay apparently unconscious on the ground. His friend Livingston raised his prostrate form, and held him in his arms while the surgeon attempted a hasty examination. But Gilbert was already beyond all earthly aid, for he expired in the arms of his friend in less than five minutes from the time when the fatal shot was fired. News of the duel quickly spread in Sacramento, and the most intense sen- sation was produced. The mayor of the city appointed Jos. W. Winans and Gilbert's sorrowing friend, Livingston, on behalf of the citizens of Sacramento, to convey the body to San Francisco. It was brought down on the steamer Antelope, and on its arrival in San Francisco was conveyed to the home of Edward Conner, assistant editor of the Alta. The city was filled with gloom over the tragic affair, and elaborate arrangements were made for the funeral, to take place the next day. Everywhere was an aspect of general mourning. On the day of the funeral merchants closed their places of business, flags were displayed at half-mast and all classes of citizens turned out en masse to honor the dead editor. The attendance was the largest ever known up to that date. Tlie Herald. News, IJliig and Journal of Commerce, all appeared in mourning, Gilbert was buried in the old Yerba Buena Cemetery, and his body rested where the corner stone of the new City Hall now stands. General Denver was never molested for the part he took in the unfortunate affair. Inasmuch as General Denver was a lawyer by profession, we may add the following. He was born in Winchester, Va., October 23, 1817. He was a farmer's son, and began the study of law in 1842 in Ohio. He was graduated at the Cincinnati Law School in the spring of 1844. He went to Platte City, Missouri, and studied law, but it seems that the War with Mexico turned him away from the legal profession. He raised a company of infantry, was appointed its captain, and served under General Scott to the end of the war. In 1850 he crossed the plains to California. He was very soon elected to the State Senate for Trinity and Klamath counties, and served at the ses- sions of 1852 and 1853. He was Secretary of State fn^m February, 1853, to November, 1855, when he resigned. He was a representative in Congress from March, 1855, to March, 1857. He was Governor of Kansas Territory in 1857-58. After a brief sojourn in California he settled in Ohio. In the Civil War lie was a Brigadier-General of xohuitecrs. resigning from ihe Army in March, 1863. General I)en\cr died in Wasliington, D. C, .\ugust 8, 1894. 232 History of the Bench and Bar of California. THE BRODERICK-SMITH DUEL, 1852 Of this encounter we give the hvcly narrative of Charles P. Diiane. who witnessed it : There arc very few people who are aware of the fact that David C. Brod- erick ever fought a duel previous to the one in 1859, when he lost his life. In 1852 Broderick received a challenge to fight a duel from Judge Smith, the son of ex-Governor Smith of Virginia, who was better known as "Extra Billy" Smith. Judge Smith was also a brother of Austin Smith, who was killed in the late war while fighting in the Confederate service. At that time a man who refused to accept a challenge was not permitted to move in what was considered good society. He was treated with contempt and looked upon as a coward. Of course. Broderick accepted his challenge, and the ground was selected for the duel across the bay, about where the center of the city of Oakland now is. There were but a few shanties there then, and they were located on the shore, where the foot of Broadway street is. As soon as the news was spread that the place for the fighting had been fixed upon, every Whitehall boat in the harbor was engaged in taking people over the bay. They went back and forth all the night preceding the day of the duel. Ira Cole, two other gentlemen, and myself started from the San Francisco side in a Whitehall boat at one o'clock in the morning of the day of the duel. The fog on the bay was very heavy, and after we had gone some distance past Goat Island the tide was very low. and we found ourselves on the mud flats. We were obliged to remain there nearly an hour, and were surrounded by a great many boats in the same predicament. It was so foggy that we could not distinguish the forms of the occupants of the other boats, but we recognized our friends by their voices as they saluted our boat with "Brig ahoy !" and "Ship ahoy !" and the firing of pistols. A shot fired by some person hit one of the sailors in our boat in the arm and disabled him. Although we could not see each other, all sorts of bets w-ere made on the result of the duel. After remaining on the flats for an hour, we drew lots in our boat to see who should undress and tow the boat to shore. I believe Ira Cole cheated me, because they all laughed at me when I pulled the short straw by the light of a cigar. As soon as it was decided that I should do the work, I immediately took off, my clothes and stepped into the cold mud. I took the direction, as I thought, toward shore, and kept hauling until the break of day, when I felt as though I had towed the boat twenty miles. About the time that day dawned I reached the shore and found that I had towed the boat one mile south in a zigzag fashion from where the foot of Broadway street now is. After I had dug a hole for the water to come in, with the oars of the boat, and had taken a bath, we hauled our boat on shore. We then went over the fields until we sighted two pretty large crowds of people, apparently about a quarter of a mile apart, when we steered our course in that direction and were soon amidst them. One crowd were the friends of Broderick, and the others were the friends of Judge Smith, who was on the ground, accompanied by his father, Governor Smith. The duel was to be fought with navy revolvers, at a distance of ten paces, the signal for the shooting being, "One, two, three, fire." At the word "fire" the parties were to shoot, and, if they desired, were to advance toward each other, the firing to continue until all the six shots had been used. John A. McGlynn presented me with a navy revolver in 1850. It was a very fine one, and while I was shooting with it at a target, on several occasions, the exploded cap caught and prevented the cylinder from revolving. I took it to Brown & Natchez's gun-shop, opposite the Plaza, and had the cylinder filed so that the cap would not catch. Vi. Turner, one of Broderick's seconds, borrowed this pistol from me on the day before the duel, for Broderick's use. On the field, History of the Bench and Bar of California. 233 when the duellists tossed up for the choice of pistols, Judge Smith's second won the choice, and he took the pistol which I had loaned to Vi. Turner for Brod- erick. Smith's pistol was the same make, but had not been filed as mine had. Previous to the placing of the pistols in the hands of the principals, Broderick pulled out his heavy, double-cased gold watch, which the Howard Engine Com- pany in New York, of which he had been foreman, had presented to him on his departure from New York for California. He handed the watch to Vi. Turner, and within my hearing Turner said, "Put your watch in your pocket; if you are shot, die like a gentleman." At this Broderick smiled and replaced the time-piece in his pocket. The pistols were then handed to Broderick and Smith, and the question asked, "Are you ready?" On both answering in the affirmative, the word "fire" was given, and they both commenced firing. I could not tell which of them fired first. After the first shot Broderick's exploded cap caught in the cylinder of his. pistol, and he did not have strength enough in one hand to cock it in the usual way. He then grabbed it in both hands, and, put- ting the pistol between his knees, proceeded to cock it. While in this position, facing his opponent, he was struck by a bullet from Smith's pistol. The ball hit him in the stomach and staggered him, and his hat fell to the ground. Hav- ing succeeded in cocking his pistol, he returned the fire, and they both kept shooting until they had fired their six shots. The seconds then rushed up to their respective principals, and Turner unbuttoned Broderick's coat. I stood close to him, and on examination we found that the bullet had hit the center of his heavy-cased watch, and that fragments of the bullet went through both cases and cut his stomach. Judge Smith was not hit at all. After a few moments. Turner asked Broderick if he felt able to renew the .duel. His reply was, "Certainly, I am." The people on both sides were ordered back, and the seconds of both parties held a consultation with each other, and afterwards with their principals. At the consultation of the seconds, Mr. Smith's representative, on behalf of Judge Smith, said that he acknowledged that Broderick was an honorable gentleman. When Broderick's seconds informed him of this fact, he said, "Well, that is sufficient," whereupon the seconds brought their prin- cipals half way, and Broderick and Smith shook hands. The result was pleasing to all parties concerned. After the duel, it was impossible for all the people to get back to San Francisco on the same day, and many walked up to an old house known as the Estudillo Rancho, a private mansion occupied by Spanish people, which was situated where Saa Leandro now is. There they obtained horses and rode to San Francisco by way of San Jose. The Smiths referred to in this account, comprised one of the most remark- able famihes in our poHtical history. The father, after a brief appearance at the early California bar, returned to Virginia, of which State he had been Governor. He presided at the first Democratic State convention of Cali- fornia in 1850, and was the whitest-headed man in that body of pioneers. We last heard of him in 1885, when he was ninety years old and in robust health, living on his five-hundred-acre farm near Warrenton. The other two Smiths referred to were his sons. Austin, more properly Austin E., was United States Navy agent at San Francisco under President P>uchanan. He had his duels, too, and was killed in the Confederate Army. The Judge Smith referred to, was J. Caleb Smith, Judge of the Court of Sessions of San Francisco in the early fifties. 234 History of the Bench and Bar of California. THE RUST-STIDGER DUEL IN 1833 In June, 1853, Judge Stidger (editor of the Marvsville, Cal., Herald) and Colonel Rust (editor of the California Express) met two miles south of Yuba City, in Sutter county, with Mississippi yagers, at sixty paces, and fired twice at each other without effect. Some few years ago, an eye-witness of this duel prepared a very elaborate account of it for a San Francisco paper. He entitled the article "A Clash Between Northern and Southern Pluck.' This account is presented here, as copied in Truman's "Field of Honor" : In the early days of California the writer resided in the then bustling and since beautiful city of Marysville. Of course he witnessed many exciting scenes. There was a vast mixture of the tragic, comic, and melodramatic, which could be woven by a masterhand into a volume of absorbing interest. The meeting for mortal combat between Judge Stephen J. Field and Judge W. T. Barbour, which, with the farcical incidents, is described by Judge Field in his valuable little book of reminiscences: the latter judge's long and vexatious controversy with Judge Turner ; the beating of Dr. Winters by Plummer Thurston ; the at- tempt to kill Judge O. P. Stidger by Plummer Thurston, just named, and Judge Barbour — these are but a few of this class of occurrences which agitated Marys- ville from 1850 to 1855. It is only the writer's intention now to narrate the cir- cumstances of a duel between Judge Stidger and Colonel Richard Rust, which took place in June, 1853, in Sutter county. Judge Stidger was then one of the editors of the Marysville Herald, a Whig paper, while Colonel Rust edited the Deinocratic organ in that city, the Cali- fornia Express. The two gentlemen had engaged for several days in a violent newspaper war, during which each had called the other anything but tender names. Judge Stidger's friends claimed that he was victor in the war of words, because he could say more mean things of his adversary in a minute than the latter could think of in a day. The judge had a peculiar way of driving the steel home at every thrust, and his antagonist was not able to return like for like. -The consequence was that the judge was invited to transfer the quarrel to a field of different kind, that it might be settled in actual physical encounter by the arbitrament of the bullet. He owned his printing material, but was in debt, and John C. Fall was his endorser. Fall was approached and asked to • withdraw from beneath Stidger his sustaining arms, and let the Herald pass into other hands. Fall declined to do this, and the fight went on. Finally, Colonel Rust's friends prevailed upon him to send the Judge a challenge to repair to the bloody and historic field of honor. It w-ill not be doing him any injustice, perhaps, to say that they reasoned in this way: "Judge Stidger was born in Ohio, and was raised to look upon duelling as a crime. He won't accept a challenge, and if he does not he will be disgraced and compelled to leave the country." Tlie challenge was sent, the bearers being Lee Martin and Charles S. Fair- fax, both now deceased, the party of the second part receiving it on Friday, at the Herald office. It was promptly accepted. Judge Stidger's reply being de- livered by Judge Gordon N. Motl, now a resident of San Francisco. Subse- quently Judge T. B. Reardon, (who presided at the second trial of Mrs. Fair, and is now practicing law at Oroville) came into the affair as a friend to the challenged party, and performed an important part. On the day the hostile missives passed, with commendable dispatch, pistols for two and coffee for six were provided. Being the challenged party, Judge Stidger was, under the code, History of the Bench and Bar of California. 235 entitled to dictate the kind of weapons to be used, and the distance. He was a crack shot with the rifle. He chose buckeye rifles with set triggers, and fixed the distance at sixty paces. Judge Mott and Colonel Fairfax sallied forth in search of the needful instruments of death. They could not find any "buck- eyes" in the city, and the only two weapons of the kind to be had were Missis- sippi yagers. These would suffice, of course, if they were of equal merit. The opposing seconds took them out and "tried them." One proved to be more reliable than the other. Another could not be had. What was to be done? The seconds determined the choice by lot, and Fairfax won the best gun for his principal. Judge Mott felt bad, but said nothing. It was agreed that the meeting should take place at sunrise on Sunday (it was then late on Friday), at any place in Sutter county selected by the seconds over five hundred yards from the Yuba county line. On Saturday night the seconds of Colonel Rust reported that he was seriously ill, and asked a postponement of the battle for one week, which was granted. It was believed by Judge Stidger and his friends that this was a ruse to get time to enable Colonel Rust to practice wtih his weapon. Be that as it was, the parties met one week from the time first appointed, the spot selected being a pretty grove of native oaks, about two miles south of Yuba City, near the public road between that "city" and the celebrated "Hook Farm." then occupied by General Sutter. In addition to their seconds, before named. Judge Stidger was accompanied by Dr. McDaniel, and Colonel Rust by his brother, Dr. Rust, as surgeons. The week's postponement had had the effect to let out the secret, and several hundred citizens of Marysville were anxious spectators of the solemn scene. The dis- tance being paced ofif, the choice of position and the giving of the word were, by chance, won by the seconds of Colonel Rust. It then looked bad for Judge Stidger. Judge Mott said to himself, "My man is going to get killed ; Rust has the best gun and the best standpoint." Such was the fact, enough to inspire foreboding of evil. Rust stood within the shade of a large oak-tree, his back to the rising sun, which shone full in the face of Stidger. If Colonel Rust had not been practicing with his weapon during the preceding week, he was 3'et familiar with its soecies, while Judge Stidger never saw a Mississippi yager until he was handed one on that portentous morning. The writer recalls the Judge's remark upon taking his gun. He was standing at the spot marked out for him, his base of operations ; Dr. McDaniel was about twenty feet to his left, the writer being near the doctor. Judge Stidger examined his gun carefully, and said to McDaniel; "Doc, what kind of a gun do you call this? I never saw one like it before." McDaniel gave the weapon's name. "Well," continued the Judge, "the bore can carry a half-pound ball; if I get hit there won't be a grease-spot left of me." Just then Judge Mott approached and told his principal to keep cool. The reply was : "Oh, I'm as cool as a cucumber. I chose buckeye rifles," continued the principal. "I never saw a gun like this before, and I don't know how to handle it." Judge Mott said that buckeyes of equal calibre could not be found, and that he had done the best possible, and he explained the circumstances. Im- mediately after this the parties were instructed how to hold their guns until the word was given, how it would be given, and at what time to shoot, thus : "Gentlemen, are you ready?" On both principals responding "Aye," or "Yes." these w»rds would follow: "Fire! One — two — three — stop!" A momentary pause would follow each word, and the principals were to fire at any time be- tween the words "Are," and "stop." Fairfax gave instructions, after which the combatants were placed in position. The seconds took their projicr places, and the surgeons were within conversational distance. It was a scene that left an indelible impress on the mind of the beholder. Tlie harmony of nature and the antagonism of men presented a striking con- trast. The eight comprising the two groups were fine specimens of manly strength and symmetry of form. Their average age was about tkirty years. 236 History of the Bench and Bar of California. The Rust party were all Southern men ; the Stidger party comprised two South- erners — Reardon and McDaniel, while Judges Stidger and Mott were from Ohio. They stood beneath the tattered banner of a code which was hoary with age, and had reached the last decade of its sway in American States. Cui bono ? Being near Judge Stidger's position and some sixty yards from Colonel Rust, I saw more of the former and necessarily write more concerning his action. I can say of Colonel Rust, however, that his bearing was brave and resolute. The word came, "Gentlemen, are you ready?" Judge Stidger responded in a loud tone, "Aye." Immediately afterward followed (I did not catch Colonel Rust's response) "Fire ! One — two — three — stop !" At the word "two." slang- bang went both guns. Stidger's shot passed high over the head of Rust ; the latter's lodged in Stidger's coat-tail pocket, riddling a handkerchief. (It was a happy circumstance that the handkerchief caused the tail of the coat to bulge out, as it enabled a punster to exclaim with delight that the pocket was "rifled.") "Are your hurt?" inquired Dr. McDaniel, approaching his principal, desiring to know if his services were needed. "Hurt? no," was the answer. "Examine your pockets," said the Doctor. The Judge did so, and remarked, "That was a pretty clever shot." "Yes," replied the Doctor, "and now there must be no more foolishness. You must kill him. or he will kill you." To this the Judge answered, "I do not want to kill him. I don't want his blood on my hands. He has a family to maintain, and I don't want to rob them of their support." "That may be all very fine in theory," said the Doctor, "but the fact is before you that he is trying to kill you. and to prevent it, you must kill him. You can do it, if you will." Judges Mott and Reardon now came up, and said that Rust demanded another shot. "Very well, I am willing," said Judge Stidger. The latter was then told by Judge Reardon that he (Reardon) would leave the field unless he (.Stidger) promised to shoot at Rust. The Judge promised. Judge Mott then informed him that his position at the first fire was awkward, and he must stand erect; that if he continued to present so many angles to the enemy he was liable to get hurt. This admonition had good and immediate effect. Stidger there- after stood straight as an arrow, and at the same time bore himself with perfect ease. The seconds having retired to load the guns for the second fire. Judge Stidger said to Dr. McDaniel, "I promi-sed to shoot at Colonel Rust, but I did not promise to kill him, and I won't." Tlie Doctor said, "You must kill him, or he will kill you. Your gun carries up. Shoot for his legs, and you will hit him in the body. The gun is good for three hundred yards, but at short range it carries up." Finally Judge Stidger said, "Well, Doc, I'll wing him. I will shoot for his arm. I'll cripple him, and then he can't shoot again." "Yes," answered the Doctor, "that would do if you had a guaranty of your own life. Supposing, while you are shooting for his arm. his ball should hit you in a vital place, what then ?" "Oh," said the Judge, "if he should kill me, that would be the end of it." The Judge was now handed his gun and placed in position for the second fire, with directions, to "keep cool and shoot him." The word was given. As before, both guns went off simultaneously. My eyes were intently directed to Judge Stidger, for I expected to see him fall. After the word "stop !" he held his gun to his shoulder, and earnestly eyed his adversary as though about to shoot. This action was so interpreted by Colonel Rust's seconds, who called out, "Stop ! stop !" The fact was that, owing to both guns being fired at the same instant, the seconds of Rust did not know if Stidger had fired or not. On hearing the words "stop! stop!" Stidger threw his gun upon the ground and said, "Doc, this gun ain't worth a damn. I don't believe a man could hit a barn door with it at a distance of six feet. I had a splendid shot at his arm, and I got a pretty good sight along the barrel. If the gun had been worth a damn I would have struck his elbow." The Doctor asked, "Why didn't you shoot History of the Bench and Bar of California. 237 at his body? I told you the gun carried up." "If I had done that," said the Judge, "I would have killed him, and I didn't want to do that." "Well," said the Doctor, "if he demands another shot what will you do?" "I will kill him," was the answer; "I have now given him two fair shots at me. I could have killed him if I had desired to do so. I spared his life because of his family, and because I did not want his blood on my hands. Now, if he isn't satisfied, I'll kill him. I don't want to do it, but if I must shoot again I will end it." To this the Doctor replied, "Now, you are talking right." The seconds again came up and reported that Colonel Rust demanded another shot, and wanted the distance reduced before the next fire. Judge Stidger replied that his gun was no account at sixty paces ; he thought if the distance was doubled he would fire better. "Gentlemen," said he to his seconds, "I am in your hands. What- ever you say I must do, I will do. I only ask you to protect my honor." Judge Reardon replied, "That we will do." Judges Mott and Reardon then took the gun and left, and met the opposing seconds on neutral ground. The four men, after the guns were again loaded, appeared to be in earnest consultation. Tlie while the J^idge was pacing back and forth, talking with his physician. The Judge had got warmed up, and was chafing. McDaniel advised him to keep cool. "Oh, don't you fear, Doc," said the Judge, "I will be cool enough to kill that fellow, if he forces me to do it." Several minutes passed — seeming to the writer "a vast half hour" — when one of the seconds fired off a gun, which was a signal that some arrangement had been made putting an end to the affair. Judge Stidger's seconds coming back and verifying the "report" of the gun, he asked, "How? On what terms?" Judge Reardon answered, "Honorably to you. I drew up the stipulations, and saw to it that you are not compro- mised. The terms are honorable to both parties, and I am to hold the docu- ments." All parties then left the field for the city. Some time after the duel it was stated that Judge Stidger's second shot cut Colonel Rust's hair just above his ear, and that this it was that caused the Colonel's seconds to make peace. Whether true or not, the writer could not learn to his satisfaction. He has often talked with Colonel Fairfax about this duel. He (Fairfax) stated that he had witnessed many meetings of the kind in the South, where he was born and reared, but had never seen two men stand up more manfully to their work than those engaged in this affair. He spoke in glowing terms of Judge Stidger on that occasion, for, he said, he expected to see him wilt, being a Northern man, unacquainted with the code duello. "People needn't tell me," he said, "that men born in the North are cowards. I know better. It won't do to fool with such men. They have pluck and will die game." ROBERT TEVIS AND CHARLES E. LIPPINCOTT AND THEIR DUEL IN 1855 We give Calvin B. McDonakl's accotint of this fatal meeting, a.s published by the Sacramento Record-Union in ICS79. J t is as vivid a picture as he ever drew. Calvin B. McDonald was assistant editor of the Evoiing Journal in 1 860-6 r ; later editor of 1). (). McCarthy's American I'lui^, [865-66. He was sometimes called "The Triple Thunderer." We were city editor of the B.raniiner when Dickens died, and the editor-in-chief, B. F. Washington, con- sented to the employment of McDonald specially to write an editorial on Dickens. This was in 1870. Not long afterwards, the two editors became 238 History of the Bench and Bar of California. personal enemies and waged war npon each otlier in their editorial column Both ha\e been dead for many years. In 1855 there came to this State a female temperance-lecturer. Miss Sarah Pellet, a friend of Lucy Stone Blackwell, Antoinette Brown and that confedera- tion of lady reformers. She was young, intelligent, good-looking, and pure, and will be kindly remembered by many who shall read this sketch. The writer of this was then conducting the Sierra Citizen at Downieville. and Miss Pellet having been scurrilously referred to by certain other papers, she there found defenders, came to Downieville, and we became fast friends. Through her exertions a large and flourishing division of the Sons of Temperance was there established, and all the respectable young men temporarily stopped drinking and became enthusiastic advocates of total abstinence. A temperance Fourth-of July celebration was projected, and we nominated our friend, Miss Pellet, to make the oration, and notwithstanding a strong prejudice against women orators, succeeded in procuring her the coveted invitation. A short time before that, Mr. Robert Tevis. a promising young lawyer, and a brother of Lloyd Tevis, of San Francisco, who had come there to run for Congress, joined the Temperance Division, and was anxious to make the speech in order to present himself favor- ably to the public. He was hard to be put off, and was never reconciled to the disappointment ; though, to pacify his opposition to the lady speaker, he was appointed to read the Declaration of Independence, with the privilege of making some remarks on the illustrious document. The glorious Fourth shone brightly on two or three thousand people. The celebration began with a salvo of all the anvils in town ; the primitive band blew the blast of Freedom through patriotic brass, and Mr. Tevis. having read, began to comment on the Declaration in a long speech, greatly to the displeasure of the gallant sons. In order to termi- nate his misappropriate oration, the anvils were set to firing with such a thunder- ing and consecutive noise that nothing else could be heard, and Mr. Tevis, being very angry, gave way for the orator and sat down. The event made a great deal of talk, and brought the ambitious young man into very unpleasant notoriety instead of fame. The Democratic party had procured the use of two columns of the local paper, and had appointed as editor the Hon. Charles E. Lippincott, State Senator from Yuba county. Lippincott had a keen appreciation of the ludicrous, and as Tevis was a Know-Nothing. he took occasion to roast the unfortunate young man in the Democratic corner of the paper, and it created a great deal of fun in the town. The next day Mr. Tevis came to me — I had no jurisdiction in the Democratic side of the paper — and demanded the publication of a card which pronounced the author of Lippincott's article "a liar and a slanderer." He was white with rage, and trembling, and would not be reasoned with. Knowing the nature of his antagonist and his deadly skill with arms, I tried to dissuade Tevis from the rash and dangerous publication, and dwelt on the inevitable consequence. But he would hear nothing; he wanted to fight, he said, and would fight, in the street or otherwise ; and if the card was not published he would consider it an act of hostility to himself; and so the uncon- scious type gave out the fatal impress, and a challenge from Lippincott followed promptly, and was as promptly accepted. Tlie difficulty took a political shape — Democrats and Know Nothings — though some leading Democrats did their best to prevent the meeting. Both belligerents belonged to the order of Odd Fellows, but as neither was a member of the local lodge, no direct authority could be imposed, though the good brethren kept in session all night devising means to prevent the encounter. Several times the difficulty was supposed to be settled, but as often it would be renewed by certain chivalric vagabonds, who seemed eager to see bloodshed when not flowing from their own veins. Morning came; the forenoon passed. TTie peace-makers having been so often baffled, gave up their humane exertions, and it was understood that the fight would come off" History of the Bench and Bar of California. 239 that afternoon. In the meantime the principals and their friends had gone to the wood, the public not knowing when or where, and the sheriff was in pur- suit. The duelling ground had been selected some six miles from town, on a flat near the top of the lofty hills of Sierra county, where never a bird sings and where the somber fir trees spread their eternal pall ; but when nearly ready for their sanguinary proceedings the sheriff and his posse were descried on a distant eminence, and the duelling party moved into an adjacent county, be- yond the jurisdiction of the pursuers. There another arena was prepared, and the great act of the tragedy was ready to come on. In the meanwhile the prin- cipals had been away with their seconds in opposite directions, practicing with double-barreled shotguns, loaded with ball, at forty yards — the weapons and distance agreed on — and I was afterward told that each had broken a bottle at the word. Lippincott was a low, heavy-set man with light hair, piercing black eyes, deliberate and resolute in his speech, and with that peculiar physical struc- ture indicating steadiness and self-possession. He was the son of a clergyman in Illinois, and was exemplary in his habits, except the ordinary drinking of that time ; was highly cultivated in mind, and was an exceedingly good humorous and sentimental writer. He declared he did not wish to kill his adversary, to whom he had never spoken in person ; did not want to fight if it could be avoided, but the nature of the public insult and the customs of the time compelled him to send the challenge. During a previous winter he had been engaged in hunting deer and bear, and was known to be a remarkably good woodsman. In making his choice of weapons, Tevis unknowingly selected those with which his adver- sary was most familiar, double-barreled shotguns, carrying ounce balls. Mr. Tevis was a tall, spare man, of a highly nervous and excitable temperament. He came from Kentucky, and possessed the ideas of chivalry and honor pre- vailing at the South, and was an excellent sporting marksman, but too little skilled in woodcraft to know that in shooting down hill one should aim low, .else he will overreach the mark. He was possessed of good natural abilities, but was somewhat eccentric in manner, and did not possess the element of popu- larity. In walking out with him on the evening before the meeting I observed his manner was abstracted and his speech confused and faltering as he talked of his solemn situation, but his courage and resolution were unwavering, and he. seemed absolutely athirst to spill the blood of the one who had made him the object of mortifying ridicule. This was our last interview and his last night upon earth; and the pale, ghost-like face, as it then appeared in the twilight when he walked under the frowning hills and beside the resounding river, hangs in my memory to this day. I had seen the bounding deer sink down before the aim of his iron-nerved antagonist, and felt then that he was a doomed man walking the lonely outskirts of the world. The combatants took their places, forty yards apart; the ground was a little sloping, and the highest situation fell to the lot of Tevis. The sun was going down upon the peace and happiness of two families far away, and upon a brilliant young man's ambition and life. As his second walked away he turned toward Tevis and laid his finger on his own breast, as an indication where to aim, and Lippincott observed the gesture and fixed his eyes on the same place. Tlie word was given ; both guns cracked at the same instant. Tevis sank down, shot directly through the heart, and a lock of hair fell from near Lippincott's ear. The fallen man had not made the necessary allowance for descending ground, and his murderous lead had passed directly over his adversary's left shoulder, grazing his face. His wound was frightful, as though it had been bored through with an auger, and the ground was horrible with its sanguine libation. The survivor and his friends took their departure, and the dead man was temporarily buried in that lonely place, which in the gathering twilight seemed like the chosen abode of the genius of solitude. On the following day the body was taken up, properly enclosed, packed on a mule to Downieville, and interred in the bleak hillside cemetery. The funeral was very large, and demonstrative, and seemed to be a death-rite performed by 240 History of the Bench and Bar of California. the Know Nothing party; and although the duel had been fair enough, accord- ing to the murderous code, the better class of citizens regarded Tevis as the victim of that fell and devilish spirit which has stained the history of our State with human blood. Lippincott fled to Nevada ; and when he afterward returned to Downieville, he felt himself like another Ishmael. Old friends extended their hands reluctantly, and then the man of sensibility felt that he was overshadowed by that voiceless, noiseless, horrible thing which made a coward of Macbeth. Miss Pellet, regarding herself as the innocent cause of the duel, stood courage- ously b)' her friend, visited him in his exile, exerted all her personal influence to reconcile public opinion to the survivor, and behaved altogether like a brave, true-hearted woman, as she was and still is, in her fancied mission of reform. After completing his term in the State Senate, Mr. Lippincott returned to his home in Illinois, to find his reverend father dying. I heard that his son's con- nection with the fatal duel broke the good man's heart, and he died. At the outbreak of the war, Lippincott joined the Union armies, distinguished himself in battle by his reckless daring, and became a Brigadier-General. He was afterward the Republican State auditor of Illinois. If this brief sketch should come to the attention of his personal or political friends, let them know that his career in California was distinguished and honorable; that he was respected and beloved by his acquaintances, and that his unhappy entanglement in the duel resulted from his position and the prevailing spirit of border life. At that time a politician who would have suffered himself to be published a liar and a slan- derer, without prompt resentment, would have been considered as disgraced by most of his fellow-citizens. Mr. Lippincott was an intimate friend and strong supporter of the late Senator Broderick, and was by him regarded as hie ablest advocate and partisan. Miss Pellet went to Oregon, and there, while a gallant settler went to pilot and protect her through the wilderness, the savages came upon and murdered his family and burnt his house. So did disaster seem to follow the poor girl. Afterward she returned across the plains to the East, and ' I have lately heard of her at a woman suffrage convention in Syracuse. Her temperance division at Downieville has melted away ; some of her cold-water converts are dead ; others have been separated from their families by the foul fiend whom she almost drove from the place, and one remains to be the brief historian of her memorable and melancholy campaign. And so swiftly turns the whirligig of time. GEO. PEN. JOHNSTON AND WILLIAM I. FERGUSON AND THE FATAL DUEL OF J858 Geo. Pen. Johnston of San Francisco, and William I. Ferguson of Sac- ramento, were true politicians — we might almost say, born politicians. They were most at home in political Ixidies, and. even before they reached man's estate, found their best stimulus in party strife. They thus represented a great class. To quote Wendell Phillips, if you had put them, when babies in their cradles, in the same room, one of them would have immediately said, "Mr. Speaker!" and the other would have called him to order. The account which follows, of the fatal meeting between these men on Angel Island in San Francisco bay, August 21, 1858 — appeared in the San Francisco Call, when the death of Mr. Johnston occurred, in 1884. It tells something of the men as wel) as of their dispute, and we will tell more of them later on. History of the Bench and Bar of California. 2 4 George Pendleton Johnson was born in Kentucky and reared amono- a people whose traditions and sentiments not only accepted the duello, but exalted it as the tribunal of honor; and, while he would probably always have justified to his fellowmen the slaying of anyone under its rules, his humane, generous heart could never let him rest in entire peace with himself, under the knowledge that a human being had died through act of his. All his surroundings, as well as his antecedents, led him to the duel. He was not only born and reared in a state where "the code" was maintained and justified, but he emigrated to one where it was even more resorted to for the settlement of differences. The duello was never more popular anywhere, probably in the decade from 1840 to 1850, than in California. So many men had fallen or been injured, that about 1856 the practice of duelling fell into disfavor and disuse. The Johnston-Ferguson affair gave it a new impetus, which culminated in the killing in 1859 of David C. Broderick by David S. Terry, who resigned the Chief-Justiceship of the State Supreme Court to engage in this famous duel. The parties to the first of these two affairs were both prominent men, and the part each had taken in the exciting political events of the three preceding years had made them wide- known. Johnston had been a member of the assembly, where he had taken a prominent part, among other things, in introducing and pushing to passage an anti-duelling act, to give force and effect to the constitutional provision on that subject. He was an ardent supporter of Dr. Gwin for the United States senatorship, and opposed to the pretensions of Broderick, engaging in that con- test with all his ardor and oratorical ability, which was considerable. In addition, he had rendered his decision as United States court commissioner in the celebrated case of the negro Archie, which created much feeling for its bearing on the question of slavery — the more by reason of its being a ruling by a Southern man in favor of the negro under one application of the fugitive- slave law ; and finally he was clerk of the United States Circuit Court in San Francisco. Ferguson was a remarkable man, then in the prime of life and the full flush of his splendid talents. The son of a carpenter, born in Pennsylvania, he removed to Springfield, Illinois, where he studied law under Colonel E. D. Baker, and rose to a level at the bar with such associates as Abraham Lincoln, David S. Logan, Baker, and others of that calibre; thence removing to Texas, and finall}' to Sacramento, in this State, where he took and maintained his position among the brightest men at the bar, excelling especially in the depart- ment of criminal law. Possessed of great ambition, a brilliant genius, one of the most eloquent and fascinating orators California has ever held in citizen- ship, he entered politics, and soon became one of the most conspicuous char- acters in public life here. Elected to the State senate on the Know-Nothing ticket, he was in a sense a candidate for the United States senate in the ex- citing session of 1855-6, but finally supported General Henry S. Foote. father of our present railroad commissioner, upon the general's receiving the caucus nomination of the party. When the defection of Wilson Flint, one of the hold-over senators from San Francisco, who disregarded his parly obligations and refused to vote for General Foote, prevented the latter's election and enabled Broderick to carry off at the next session the prize for which he struggled so long, only to find it a disappointing bauble, Ferguson distinguished himself by the force of the withering invective with which he denounced the "recreant." Then Ferguson became more prominent by renouncing the Know- Nothing party, his constituents demanding his resignation. He resigned, and made a successful canvass for re-election. Ferguson had one unfortunate frailty to which genius is often linked. Like many brilliant men of that, as of all other times, he was addicted to strong drink. In his convivial hours — or days — he was hilarious to a point quite inconsistent with the dignity of the senatorial character, even drunken senatorial dignity, as understood here a quarter of a century ago, and some of his roystering performances had gained for him the 242 History of the Bench and Bar of California. nickname of "Yip-see-Doodle." During the senatorial contest above men- tioned General Foote was thrown into such a transport of rage by a taunting mention of "Yip-see-Doodle," on the part of Colonel A. J. Butler, that he seized his tormentor, a man twice as large as he, by the collar, in a ludicrous effort to shake him. One evening about the middle of August, 1858, Johnston and Ferguson met in the old Bank Exchange saloon on Montgomery street. A joke by Ferguson, in which the names of ladies, friends of Johnston, were ludicrously introduced, was resented by the latter. High words ensued and weapons were drawn. Friends present interfered and they were parted. John- ston, who believed himself insulted, sent his friend, W. B. Dameron, to Ferguson the next day to demand an apology or satisfaction in the regular way of the duello. Ferguson refused the apology, was challenged, and accepted. It was first arranged that they should meet near Sausalito, but this was modified, and at five o'clock on Saturday afternoon, August 21, they stood facing each other in hostile attitude in a secluded glen on the east side of Angel Island, near where the quarry now- is. Every traveller on the ferry between this city and San Quentin Point has seen the spot. Washington and Dameron were the seconds of Johnston ; Eugene L. Sullivan and J. M. Estill, of Ferguson. Drs. Hitchcock, Angel and White were in professional attendance, and besides there were quite a number of spectators. The principals stood ten paces apart, resolutely awaiting the word, which was in the usual form: "Are you ready? Fire ! One — two — three, stop !" After the interrogatory, both men answered firmly and exchanged shots at the word. Neither was harmed, and by mutual consent the distance was lessened. Again they fired without injury to either. The distance was again shortened, and a third time they fired inefifectually. At the beginning it was agreed that this should be the limit of the encounter, but Johnston insisted on an apology or a continuation of the fight. Ferguson was firm in refusing any sort of apology, and again the men faced each other, this time but twenty feet apart. The word was given ; they fired simultaneously. Johnston's wrist was grazed, and Ferguson sank into the arms of his seconds, his right thigh shattered by the bullet of his adversary. Equal to Curran in pure wit and humor was Ferguson. The combatants had exchanged two shots, and Ferguson had fired his third, when, looking right into the jaws of death, he exclaimed, laughingly, to his second, "I'm a gone community." Mercutio was not gamer. While Ferguson was lying on the ground, undergoing surgical examination, Johnston expressed a wish to give him his hand before quitting the ground. Ferguson faintly replied that he was in the hands of his seconds. Upon their assenting, Johnston advanced and, gra.sping the hand of his prostrate opponent, said, warmly, "Uncle Ferg., I'm sorry for you." "That's all right," whispered Ferguson ; whereupon Johnston remarked, "That's enough said between gen- tlemen," and left the ground with his friends. Ferguson was removed to the city, where he was attended by half a dozen or more of the best surgeons here, including Drs. Sawyer, Grey, Coit, Angel, and Bowie. They advised him from the first that his wound was a serious one; that with prompt ampu- tation of the limb there were fair chances of his recovery, but without it a very slim chance. He replied that he would not part with his leg for the whole of California, and that he would take the solitary slim chance they intimated. He sank slowly ; the wound began to mortify ; and when, finally, on September 14th, the amputation of the leg was attempted, he died under the operation. His death created a profound feeling on this coast, for he was recognized as a man of remarkable talents and promise. The body was taken to Sacramento for burial. A large delegation of prominent people from that city met it at Benicia and conducted it to the capital. It was laid in state in the senate chamber, where, carrying out the dying request of his unfortunate young friend and pupil. Colonel E. D. Baker pronounced, in the presence of a great assem- History of the Bench and Bar of California. 243 blage, the funeral oration, followed by an impressive sermon by Rev. J. A. Benton, of the Congregational church. A great concourse followed the remains to the grave, and the people of Sacramento erected a handsome monument which yet marks the resting place of their gifted but unfortunate senator. Of cour.se the sentiment was now largely in sympathy with Ferguson and against his slayer, and it was asserted that the duel was unfair because Ferguson knew nothing of the use of the pistol. Without expressing an opinion in regard to this. Colonel Baker mentioned it in his funeral oration, stating that Ferguson had never fired a pistol till the day before the duel. The reply to all this is simply that he, as the challenged party, named the weapons. Before the latter's death Johnston left the city on the United States revenue cutter W. L. Marcy, and it was said that he had run away to avoid responsibility for the duel; but upon being indicted by the San Francisco grand jury, under the anti-duelling act, of which he was the author, he came back to stand his trial. The grand jury of Marin county having also presented him for the same offence, he chose to meet his trial there, and surrendered to the authorities of that county. The trial took place before the Court of Sessions at San Rafael. The district- attorney prosecuted, and A. P. Crittenden, W. H. Patterson, E. L. Gould and T. W. Hanson — all since deceased — defended. The defense was that the wound was not necessarily fatal, and that if Ferguson had consented to an operation when advised to, he would have recovered. The medical testimony supported this theory, and the defense succeeded in securing an acquittal. The proceeding on the indictment in this county was dropped on the showing that the duel occured in Marin county. So far as the law was concerned, Mr. Johnston was free from the responsibility for the affair. He acted on the principles of a mistaken if chivalrous "code," which was inbred and inculcated in him, and justified him to his fellowmen who believed in or bow to that code. Men of coarser or less noble mould would have rested easy and content with such justification, but his gentle, humane heart never threw off the shadow of the tragedy. It is easy to fall in with the general belief that Geo. Pen. Johnston's life, after he took that of Ferguson, was shadowed by constant self-reproach. He did avoid publicity to a great extent, but the duel did not especially occa- sion this habit. He showed merriment of heart almost every day. He told us once that after the paper went to press (in the afternoon) he liked to take his "tod" and read illustrated journals in an Italian saloon close by, because he did not understand their language, and nobody talked to him. He said his father was a clergyman. Johnston came to California in 1850. He was in the assemlily at the session of 1855. He was clerk of the United States Circuit Court from 1855 to i860. A lawyer by profession, he so declared himself while holding this hicrative office. He was at the bar from 1862 to 1866. In 1869, he bought an interest in the Examiner newspaper, and became the exchange editor. Parting with his interest when the whole paper was sold in October, 1880, he was retained in his place as exchange edit(^r. and was so emploved at his death, which occiuM-ed on the 4th of March, 1884. His age was 57 years. He was a bachelor. The only particular statement of the f|uarrcl between these fervid s])irits which ever came to our notice was in the San Francisco Post, of November 30, 189s- P>nt. first, is it a memory of Ferguson that lirings this word 244 History of the Bench and Bar of California. "fervid" to the point of our pen? We heard him often on the stump. Once a man of opposite pohtics in the crowd sang out, "Be brief." Ferguson answered, "I ct'/// — but fervid." Whereat there was general laughter. The Post's statement referred to, is as follows : The quarrel which resulted in the duel between the two men took place on the evening of .August 19, 1858, in the famous Bank Exchange saloon, on the southeast corner of Montgomery and Washington streets. Within a radius of two squares were situated the postoffice. custom house, a number of courts, banks, etc., and in consequence the "Exchange" was constantly thronged with politicians, government clerks, business men and men about town. It was there that the two men, in company with a number of mutual friends, were spending a spare hour on the day they had the misunderstanding which was to result so fatally. In the midst of the general conversation Johnston fancied he heard Ferguson mention the name of Senator Gwin's daughter in a slurring manner.- Instantly enraged, he fiercely demanded an immediate retraction and apology. "I will never retract nor apologize," declared Ferguson, hotly, "and for the simple reason that I never used the expression you attribute to me." "I say you did," declared Johnston. "I heard you. Retract you shall." ■'I did not. Don't you dare say so, you !" exclaimed Ferguson, rushing fiercely upon Johnston. With lightning-like quickness Johnston drew and leveled his pistol, but before he could press the trigger, friends rushed between, and he did not fire. Then all those present took a hand in trying to quiet the disturbance, and both men were induced to leave the place. The next daj', however, Johnston challenged Ferguson, and the latter promptly accepted. We had known Ferguson, and felt the spell of his speech, long before this. It was a decade later, when we came to know Johnston. We then sat by the latter's side in newspaper work, and valued his friendship — although the man we loved best had fallen before his fire. Of Ferguson, it may be added that he, too, was a bachelor, and a year older than Johnston. He was born in Pennsylvania, his parents' native State, May 9, 1825. Only Baker surpassed him as a speaker, on the stump or in the court-room. At the age of twenty-three, his name was on the Democratic electoral ticket of Illinois. Baker who spoke at his burial, asso- ciated his name with those of Lincoln, Douglas, John J. Hardin, "and many others who are the pride and boast of the Mississippi valley," \W H. Hern- don, once President Lincoln's law partner, wrote to us of Ferguson in 1869. "He was the first criminal lawyer at the Sangamon bar," said Mr. Hern- don. "He was chosen to deliver the Fourth of July oration at Springfield, in 1S46, over such men as Abraham Lincoln, Judge S. T. Logan, and others. His oration was truly elocjuent ; it was finely, grandly elo(juent." Judge Herndon's letter is in full, with a short sketch of Ferguson, in "Representa- tive Men of the Pacific." Colonel Baker's remarks, and some very moving words of Ferguson himself, when he saw he was about to die. are in the little book, "Floquence of the Far West (No. i)." He died young — and, now. so long ago! History of the Bench and Bar of California. 245 "Brief, brave and glorious was his young career, — His mourners were two hosts, his friends and foes; And fitly may the stranger, lingering here, Pray for his gallant spirit's bright repose; For he was Freedom's champion." Ferguson made two dying requests: the first — "Bury me in the county which honored me with a seat in the Senate." and, "My friend Baker knew me best in life, let him speak of me in death." He then asked for solitude, and made a higher petition not heard by men. He left the earth on the sure wings of prayer. DAVID C. BRODERICK, DAVID S. TERRY, AND THE HISTORIC DUEL OF 1859. David C. Broderick was born in February, 1820, in the city of Wash- / ington, under the shadow of the Capitol. He was destined to stand in that noble pile (which, it has been said, no American ever beholds without pride or leaves without regret), and, from his place in the United States Senate, point to the handicraft of his father, a stone-cutter, on the vast dome that draws a nation's eye. An extended notice of his life is not called for here. He grew up in New York city, and followed his father's trade, securing a limited education. When he became of age, and his fine natural qualities had won the friendship of learned men, he improved the new opportunities to gather varied knowledge — this by reading borrowed books at night. At the age of twenty-six he was nominated for Congress by one wing of the Democratic party, but was defeated. He left New York for California in 1849, declaring to his friends that he expected to become a United States Senator. Arriving in San Francisco in June, he secured employment in an assay office. He joined the fire department (as he had done in New York) and became the foreman of Empire Engine Company, No. i, which after his death took his name. He was elected by the Democrats a State Senator, and served in the first, second and third sessions. At the second session, [851, he was president of the Senate, and received a good vote in the Demo- cratic caucus for United States Senator. Broderick was a provident man, addicted to no vice. I le brought some means from the East, and bought town lots, and so began the acquisition of a fortune, very soon giving up his place in the assay office. Dr. \\'illiam M. Gwin, a distinguished public man from Mississippi, and who had been a member of Congress from that State, was elected to the Federal Senate for the long term, at the first session, 1849, General Fremont being chosen for tlie short term. From that time until P)ro(lerick's death, ten years afterward, the Democratic party, which generally controlled all departments of the State government, was divided into two wings, led respectively by Gwin and Brod- 246 History of the Bench and Bar of California. erick. The great majority of Gwin's supporters were men from the Southern States, while Broderick's following was from the North — hut there were many notahle exceptions to this rule. Broderick at length obtained the high prize he had sought, and took his seat in the Senate on the 4th of ]\Iarch, 1857, for a full term. Dr. Gwin was elected at the same time for a shorter period. The latter's first term had expired two years before, but the legislature had failed to elect. Broderick. now completely dominant, permitted the election of his old rival for the short term. Before doing this he had received from Dr. Gwin the so-called "scarlet letter," about which enough was written by the Doctor's enemies to fill many large volumes. Broderick afterwards, on the stump, read it to the people, referring to it as "this humiliating letter." Let it speak for itself — it is in full as follows : Sacramento, January 16. 1857. Dear Sir: — I am likely to be the victim of the unparalelled treachery of those who have been placed in power through my aid and exertions. The most potential portion of the federal patronage is in the hands of those, who, by every principle that should govern men of honor, should be my supporters, instead of enemies, and it is being used for my destruction. My participation in the distribution of this patronage has been the source of numberless slanders upon me, that have fostered a prejudice in the public mind against me, and have created enmities that have been destructive to mj- happiness and peace of mind for years. It has entailed untold evils upon me, and while in the senate, I will not recommend a single individual for appointment to office in this State. Provided I am elected you shall have the exclusive control of this pat- ronage, so far as I am concerned, and, in its distribution, I shall only ask that it may be used with magnanimity, and not for the advantage of those who have been our mutual enemies, and unwearied in their exertions to destroy us. This determination is unalterable, and, in making this declaration I do not expect you to support me for that reason, or in any way to be governed by it, but as I have been betrayed by those who should have been my friends, I am, in a measure, powerless myself, and dependent on your magnanimity. Very respectfully, your obedient servant, Wm. M. Gwin. Hon. D. C. Broderick. \\t had been greatly interested in Broderick for some years. It was at Sacramento, on the night of August 9, 1859, in the open air, that he gave the above letter to the public, and we were present — as we had been on the interesting occasion when the Know-Nothing Lieutenant-Governor, R. M. Anderson, of Placerville, declared him duly elected United States Senator for six years. His language was very severe. At Quincy, Plumas county, his words in regard to Dr. Gwin were even more serious. He said at Saaramento : I shall give you the letter which I confidently believe was the cause of Sen- ator W. I. Ferguson's death. When the death of William I. Ferguson was announced, fellow citizens, his desk in the senate chamber was broken open, and his private papers .searched, for this letter, without avail. Ferguson on his death bed related to Estill how the fatal difficulty had been sought with him. He told Estill where the letter could be found. Estill found it, and, just pre- History of the Bench and Bar of California. 247 vious to his own death, he told me where he had placed it. A curse seems to follow the secret possession of this letter. I give it to the public, that the curse may return to its author ; that wherever he may go, by day or by night, the people shall see this evidence of his disgrace worn on his forehead as was the Scarlet Letter worn on the breast of Hester Prynne. How apposite, now, appear the words of that man of fine perception and expression, the late Judge T. H. Rearden, of San Francisco, written for our "■Representative Men," in 1870! 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 offence 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 fatal pistol that finished the career of our hero. Milton S. Latham, Governor of the State, a Northern Democrat, opposed to Broderick, was elected and served out the latter's term in the Senate. Hon. John Conness, now a resident of Massachusetts, succeeded in 1863 as United States Senator for a full term of six years. In a letter to us called forth by our recent publication of Colonel E. D. Baker's speeches, he inci- dentally alluded to this "scarlet letter." i\s Mr. Conness, who is a very positive man, speaks as if he did not care who heard, and as his words are quite interesting- and have close application here, we give them now their proper page in history. He says : "I was honored in being the friend of Broderick. I tried (in his chamber) to save him from the act which resulted in his death and which ill became him as the leader of gallant supporters — the election of Gwin to the senate. Before it was accomplished Broderick read to me, fresh from the pen of his antagonist, the latter's infamous letter of submission to Broderick, and the abnegation of ■his former division of the spoils. To heighten the disgrace and to convert me to the despicable act of its approval, Broderick added these words: 'T will lead him into the senate with a halter about his neck, and this in the presence of his friends, Mason and Slidell, and make the cup of his disgrace full." He imagined that this potent, or rather impotent, victory, over Gwin, would challenge my admiration. But. no. I did not see it that way; and I asked him who would give him the right to so degrade a senator and a senate, for the mere gratification of personal triumph over a political foe. This interview I was bidden to in his sleeping room the night before this wicked bargain was consummated. I should add that I said to him, in bitter tones, that I had carried on this contest against Gwin, cl al.. upon statements to others based upon his words, and now, when the world siiould know that he chose to misdirect my efforts and those of others, by the election of this master of corrupt political organization, how could we justify it? In 1859, the Democracy of California, which, as already stated, had always been divided, became two distinct political parties. This was caused by the policy of President Buchanan's administration in regard to the govern- ment of Kansas, then a territory (to be explaintd later). The administration party was led by Gwin; the anti-administration party, by Broderick. The former carried the State by an overwhelming majority, in spite of a combina- 248 History of the Bench and Bar of California. tion between the anti-administration Democrats and the young RepiibHcan party. At the State convention of the administration Democracy in June of that year, Hon. David S. Terry, Chief Justice of the Supreme Court, was one of the speakers called upon to address that body on the eve of final ad- journment. In liis speech he used the words which led to the celebrated duel, and which, also, will be found further along in these pages. Broderick read these words the next morning, at the breakfast table in his hotel, and expressed in strong language his indignation. The public has never been satisfied as to just wdiat he did say. D. \\'. Perley. a lawyer of some prominence, gave this version of it : "I was sitting at the breakfast table of the International Hotel, directly by the side of Mrs. Colonel James. Her husband sat on the other side of her. Directly opposite sat Selover and Broderick. I spoke to both politely and took my seat, and then commenced a conversation with Mrs. James. Broderick then addressed himself to me as folows : 'Your friend Terry has been abusing me at Sacramento.' "I said, 'What is it, Mr. Broderick?' "He replied: 'Tlie miserable wretch, after being kicked out of the con- vention, went down there and made a speech abusing me. I have defended him at all times when others deserted him. I paid and supported three newspapers to defend him during the vigilance committee days, and this is all the gratitude I get from the d d miserable wretch for the favors I have conferred on him. I have hitherto spoken of him as an honest man — as the only honest man of a miserable, corrupt Supreme Court — but now I find I was mistaken. I take it all back.' "I then spoke as follows : 'Who is it you speak of as a wretch ?' "He said, 'Terry.' "I said, 'I will inform the Judge of the language you have used concerning him.' "He said, 'Do so; I wish you to do so. I am responsible, for it.' "I then said, 'You would not dare to use this language to him.' "He sneered at this, and echoed me — 'Would not dare !' "I replied, 'No, sir, you would not dare to do it, and you shall not use it to me concerning him. I shall hold you personally responsible for the language yoM have used.' " The gentleman referred to by Mr. Perley above, was A. A. Selover, a man of eventful life, who had been a real estate dealer and notary in San Francisco, and was then associated with Fremont in the great Mariposa estate. He had read law-, but was never admitted to practice, w^e believe. He was a Major in the War with Mexico. He had been a Democrat and had been offered by President Pierce the postmastership at San Francisco, but declined. A native of the Empire State, he returned with a considerable fortune and settled in New- York city a year or so after the date of the tragedy which is now concerning us. He joined the new Republican party in 1856. Major Selover w^as shown Mr. Perley's statement of what occurred at the breakfast table, and he said : The whole language used by Mr. Broderick was in an undertone of voice. Mrs. Selover, who sat on my right, did not hear what Mr. Broderick said on the occasion. Mr. Broderick had but a few moments before read in History of the Bench and Bar of California. 249 the Sacramento Union Judge Terry's offensive remarks in the convention. When Mr. Perley retired from the table, I expressed my regret at what had occurred, to which Mr. Broderick replied that he was provoked into it by the remarks of Judge Terry upon him. I have been induced to make this statement only by the fact that Judge Terry's friends have gone beyond the record, which is shown by the correspondence previous to the duel to have contained all the language Judge Terry had to take offense at. I have no recollection of the word "damned" being used upon that occasion. I sat directly opposite, and, had it been used, I must have heard it. Perley himself, as the friend of Terry, challenged Broderick. The latter declined, because their stations in life were not equal, and because he, Brod- erick, was about to make a canvass of the State. When the election had passed, so disastrously to the Broderick Democracy and the Republicans, Judge Terry resigned his place as Chief Justice of the Supreme Court and proceeded to San Francisco. Let us now lool^ at the Judge. David S. Terry was born in Kentucky, in March, 1823. His ancestors, many generations before, had come from Ireland and Scotland, and settled in Virginia. His father was a cotton planter, and took his family to Texas before the acquisition of that country by the United States. The son, after Texan independence, which his own army service helped to achreve, read law, and was admitted to practice at Houston. After the \\2.r with Mexico, in which he also took part, he led a company of Texans to California in 1849, ^^^^, after a short experience as a miner in Calaveras coimty, began law practice in the same year, at Stockton. In 1850 he was defeated for mayor of Stockton by Samuel Purdy, who was afterwards Lieutenant-Governor. He practiced law in partnership with D. W. Perley from 1850 to the close of 1855, when he took his seat on the Supreme bench, as the elect of the Native American, or Know Nothing party, for the term of four years. He became Chief Justice, on the death of Hon. Hugh C. Murray, in September, 1857. When the great vigilance committee of 1856 was in absolute control of San Francisco, and Governor J. Neely Johnson issued his proclamation declar- ing the city was "in a state of insurrection," Judge Terry was on a visit to the metropolis. 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. L. Durkee, seized the vessel in the strait between San Pablo and San Francisco bays. The committee, in investigating the matter of this shipment of arms, desired to take the evidence of one Reuben Maloney. who was l)elieved to know all about it, and who, being a strong enemy of the com- mittee, refused to attend and testify. It was determined to take him by force, and S. A. Hopkins, vigilance sergeant, 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. Hop- kins withdrew with his men and procured reinforcements. Returning in quest 250 History of the Bench and Bar of California. of Maloney, lie met him on the street, proceeding to the State Armory, accom- panied by Judge Terry and friends, armed with guns. The arrest being resisted, Hopkins seized Judge ferry's gun, and the Judge instantly stabbed him in the neck, inflicting a terrible wound. The Judge was promptly over- powered, disarmed, and was incarcerated in "Fort Gunnybags." He was held a close prisoner for se\en 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 committee. In 1862, Judge Terry went to the Southern states, passing through Mexico, and joined the Confederate army. After serving a while on the staff of Gen. Bragg, he organized a regiment in Texas, which he C()mmanded 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. When the war closed he went to Mexico. Maximillian 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. .Vfter a short stay at White Pine, Nevada, he settled down, in 1870, in his old town, Stockton, where he resided until his death. He was a member of the constitutional convention of 1878, serving as chairman of the committee of the legislative department, and as a member of the committee on judiciary. He was author of the clause declaring the responsibility of l)ank directors to depositors. He took the stump in support of the new constitution, but declined a nomination for Supreme Judge on the ticket of the new constitution party. He was a candidate for presidential electfir on tlie Democratic ticket in 1880. and was the only nominee on that ticket defeated, the vote being close, and he falling behind, owing it is sup- posed, to his name being scratched by old friends of Broderick. We took occasion to remark of Judge Terry, a year or so before his death, as follows : 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 us a glimpse of his private life, speaks of him in terms of tenderness. His political foeman, Henry Edgerton. who defeated him for pres- idential elector in 1880, stated to us that he cherished for David S. Terry the highest personal regard. 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 court- room, 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, shufifling and cant he opposes with the full History of the Bench and Bar of California. 251 impulse and momentum of his nature. He is of giant physical stature. He stands six feet three inches in height, with Atlantean shoulders and sinews, has a weight of 225 pounds, is finely preserved, and looks ten years younger than his real age. We will turn awav from the thrilling drama which the life of this remark- able man unfolds, and pursue it to its tragic ending, under the head of the Sharon cases, elsewhere in this History, Wt resume the account of the duel : When he resigned his seat on the Supreme bench, and repaired to San Francisco, as before stated, Judge Terry addressed the following note to Senator Broderick. He wrote it at Oakland before crossing the bay, where he delivered it to his friend Benham. Oakland, Sept. 8, 1859. Hon. David C. Broderick — Dear Sir: Some two months ago, at the public table of the International Hotel, in San Francisco, you saw fit to indulge in certain remarks concerning me which are offensive in their nature. Before I heard of the circumstances, your note of the 29th of June, addressed to D. W. Perley, in which you declared that you would not respond to any call of a personal character during the political canvass just concluded, had been published. I have, therefore, not been permitted to take any notice of those remarks until the expiration of the limit fixed by yourself. I now take the earliest opportunity to require of you a retraction of those remarks. The note will be handed to you by my friend, Calhoun Benham, Esq., who is acquainted with its contents, and will receive your reply. D. S. Terry. Mr. Broderick received the note, at the hands of Col. Benham on the morning of the same day, and said he would answer in writing on the morrow. Before tomorrow came Col. Benham addressed this note : San Francisco, Sept. 8, 1859. Hon. David C. Broderick — Sir: Should you have occasion to communicate sooner than the time agreed upon between us, I will be found at the Metropolitan Hotel. 1 omitted to leave mv address this morning. Very respectfully, your obedient servant, Cai.hoi-n Benham. Mr. Broderick responded to Judge Terry's letter the next day : San Francisco, Sept. 9, 1859. Hon. D. S. Terry — Sir: Your note of September 8 reached me through the hands of Calhoun Benham, Esq. The remarks made bv me in the conversation referred to may be the subject of future misrepresentation, and, for obvious reasons, I have to desire you to state what the remarks were that you designate in your note as offensive, and of which you retpiire from me a retraction. I remain etc., I). C. Brodkuick. Judge Terry then sent his second letter: San Francisco, Sept. 9, 1859. Hon. D. C. Broderick — Sir: In reply to ynur note of this date I liavc to say that the offensive remarks which I alluded to in my conmninicatidu of yesterday are as follows: 'T have hitherto considered and spoken of him (myself) as the only honest 252 History of the Bench and Bar of California. man on the Supreme Court bench, but I now take it all back" — thus, by impli- cation, reflecting on my personal and official integrity. This is the substance of your remarks, as reported to me. The precise terms, however, in which such an implication was conveyed are not important to the question. You yourself can best remember the terms in which you spoke of me on the occasion referred to. What I require is the retraction of any words which were used calculated to reflect on my character as an officer or a gentleman. I remain your obedient servant, D. S. Terky. And the senator replied : Fkid.vy Evening, Sept. g, 1859. Hon. D. S. Terry — Sir: Yours of this date has been received. The remarks made by me were occasioned by certain offensive allusions of yours concerning me made in the convention at Sacramento, and reported in the Union of June 25. Upon the topic alluded to in your note of this date, my language, so far as my recollection serves me, was as follows : "During Judge Terry's incarceration by the vigilance committee I paid two hundred dollars a week to support a newspaper in his (your) defense. I have also stated, heretofore, that I considered him (Judge Terry) the only honest man on the Supreme bench ; but I take it all back." You are the proper judge as to whether this language affords good ground for offense. I remain, etc., D. C. Broderick. Judge Terry then wrote : S.AN Fr.\ncisco, Sept. 10, 1859. Hon. D. C. Broderick — Sir: Some months ago you used language concerning me offensive in its nature. I waited the lapse of a period of time fixed by yourself before I asked reparation therefor at your- hands. You replied, asking a specification of the language used which I regarded as offensive. In another letter I gave you the specification, and reiterated my demands for retraction. To this last letter you reply acknowledging the use of the offensive language imputed to you, and not making the retraction required. This course on your part leaves me no alternative but to demand the satis- faction usual among gentlemen, which I accordingly do. Mr. Benham will make the necessary arrangements. Your obedient servant, D. S. Terry. \nd the correspondence closed with the following: S.\N Fu.\Ncisco, Sept. 10, 1859. Hon. D. S. Terry — Sir: Your note of the above date has been received — at one o'clock A. M., September 10. In response to the same, I will refer you to my friend, Hon. J. C. McKibben, who will make the satisfactory arrangements demanded in your letter. I remain, etc., D. C. Broderick. The following terms of the duel were agreed upon : I. Principals to be attended by two seconds and a surgeon each; also by a person to load the weapons. This article not to exclude the drivers of the vehicles. If other parties obtrude, the time and place may be changed at the instance of either party. History of the Bench and Bar of Califoniia. 253 2. Place of meeting — on the farm adjoining the Lake House ranch (Laguna Merced) occupied by William Higgins. 3. Weapons — duelling pistols. 4. Distance — ten paces; parties facing each other; pistols to be held with the muzzle vertically downward. 5. Word to be given as follows, to-wit : "Gentlemen, are you ready?" Upon each party replying "Ready," the word "Fire" shall be given, to be followed by the words, "One. tw-o" ; neither party to raise his pistol before the word "Fire," nor to discharge it after the word "Two." Intervals between the words "Fire," "One," "Two," to be exemplified by the party winning the word, as near as may be. 6. Weapons to be loaded on the ground in the presence of a second of each party. 7. Choice of position and the giving of the word to be determined by chance — throwing a coin, as usual. 8. Choice of the two weapons to be determined by chance as in Article 7. 9. Choice of the respective weapons of the parties to be determined on the ground, by throwing up a coin, as usual — that is to say, each party bringing their nistols, and the pair to be used to be determined by chance as in article 7. Many years ago a distinguished jurist of this State read to us an extended account by himself of the trouble between Terry and Broderick, from its remote origin to its fatal culmination. Remembering that it was full of inter- est from an historical standpoint, we requested of him to let us reproduce the paper in connection with our own narrative. He consented, and we now give his account, omitting a considerable portion, owing to its great length. It explains the influence of the troubles in Kansas on California politics, and also gives the remarks of Judge Terry which were offensive to Broderick — which we have not set forth for that reason. Before proceeding with a detailed account of this terrible tragedy and the immediate circumstances and causes which led up to it, it is proper to notice the condition of society in California in the earlier days, and the political condi- tion of affairs during the first decade of the State's history. During the year 1849, and for a few years thereafter, there was a large immigration to California from nearly all the States of the Union. They were mostly young men under forty, years of age, who came seeking fortunes in this new and promising land. Many were ambitious for political distinction, and regarded California as a promising field for political entcrpri-.e. Of the latter class, the Southern States furnished the larger proportion, and they came fully impressed with the belief that they were the superiors of the Northern men in the qualities of gentlemen born to rule; and therefore the party leaders and directors of political affairs were to be found mainly in the ranks of these South- ern gentlemen, some of whom before coming to California had held public posi- tions of honor. They believed in slavery as a beneficent institution, and for the most part regarded the "Code of Honor" as an appropriate means for the settlement of personal grievances. They considered a Southern man greatly superior to one of Northern birth and education, in prowess and courage, and in the skillful use of deadly weapons; and consequently there wore many duels, first and last, in a considerable number of which a Northern man was one of the combatants, who, notwithstanding his Northern origin and education, mani- fested a courage and skill which more than astonished his hot-headed adver- sary. The experience of a few years taught this presuming class of Southern young men that latitude and longitude were not safe criteria for the determina- tion of courage and skill. Tliey soon learned that wOiether born and reared in 254 History of the Bench and Bar of California. the highlands of the North or on the plantations of the South, "a man's a man for a' that." It is just to say of the immigration from the South, that many were gentle- men of high educational attainments and oi refined and cultured manners. In social life they were attractive and genial companions, considerate of the opin- ions of others. This class of gentlemen was quite unlike the pretentious and boasting middle rank and low-grade chivalry, who were wont to carry upon their persons pistols and knives, with which, for even slight afifronts, they professed themselves disposed "to blow the top of your head ofif." Mr. Broderick came to California from New York early in 1849, and took up his residence in San Franci-^co. He was ambitious and inclined to political life. He was a man of strong natural ability, and possessed an indomitable will and the power of drawing men to him as a leader. Dr. William M. Gvvin. who came to California in 1849, was a Southern man by birth, residence, and education. His sympathies were with the people of his native South, and with their "peculiar institution" of slavery. He was a man of vigorous intellectual force, and was in the early days of California the leader of his party. The first legislature of the State elected him an United States Senator, and in casting lots for terms, he drew that which expired in March, 1855. His position as a Senator added to his strength as leader of the Democratic party. His influence was exercised for the advancement of his friends to the offices of Federal patronage, and, in the disposition of them, men of Southern l)irth and education, all other things being equal, were preferred. To be eligible to office, either Federal or State, it was essential, as a general rule, to be sound on the question of slavery, according to the standards of Senator Gwin and his Southern allies. This was carried to such an extent during the administrations of Pierce and Buchanan, that the custom-house at San Francisco came to be known as the "Virginia Poor House." Mr. Broderick's power as a leader steadily increased. His following com- prised people from every part of the Union, though its principal strength was from the States north of "Mason and Dixon's line." As his power grew, the opposition of Senator Gwin and his Southern followers and pro-slavery allies from Northern States increased and strengthened until it became furious ; but Broderick was equal to the emergency, and his following grew stronger and stronger and as earnest and vehement as that of its adversaries. In the summer of 1853, at the Democratic State convention held at Benicia for the nomination of a State ticket, the two factions of the party measured swords. The Southern wing, which was called the chivalry, was led by several of Senator Gwin's lieutenants, scarcely inferior in political generalship to him- self. Broderick was there in person, and conducted the fight against his oppo- nents with great adroitness as well as boldness. His ticket was nominated, with John Bigler, a native of Pennsylvania, then Governor of the State, at its head. This ticket was elected, and Broderick was then regarded by the major- ity of the Democratic party as its leader in the State, though the Gwin or chivalry wing yielded an unwilling acquiescence. At the session of the legislature assembled at Benicia early in 1854, Brod- erick and some of his friends attempted to force on the election of a United States Senator to succeed Dr. Gwin, whose term was to expire in March, 1855. This movement was regarded by many of Broderick's friends, and others, as an injudicious and reprehensible step, as it was an attempt to do by that legis- lature a duty which properly appertained to the legislature to be chosen at the next election. The attempt failed. The legislature which assembled at Sacramento, the new capital of the State, in January, 1855, made an ineffectual effort to elect a Senator. No one candidate could obtain a majority. The same thing occurred again at the legis- lature which convened in 1856. This was the "Know Nothing" legislature. The Know Nothing party became dominant in the State in 1855. It was History of the Bench and Bar of California. 255 composed largely of the chivalry branch of the Democratic party, and Whigs who had become scattered for want of a fold in which to gather them in united force. By means of the Know Nothing organization, the opportunity came to the chivalry to overthrow Broderick. and his close followers. David S. Terry, a resident of Stockton, was a strong pro-slavery Democrat. He had resided in Texas from his early boyhood until he came to California in 1849. He aban- doned his party and became a leading Know Nothing, and was nominated at its State convention in 1855 for Justice of the Supreme Court, and his ticket was elected. The Know Nothing party was short-lived, for. in the fall of 1856. the Democratic party, then under the leadership of Broderick, gained the ascend- ancy, and elected a legislature strongly Democratic. At its session in January. 1857. Broderick was elected United States Senator for the term to commence on the 4th of March of that year. There was also the partly unexpired term. which commenced on the 4th of March, 1855. to be filled, and Dr. Gwin and Milton S. Latham were aspirants for the position. The struggle between them for it waxed strong and bitter. Each sought the aid and influence of Broderick, who at the time had them at his feet. Broderick preferred Dr. Gwin. and he was elected. Gwin humbly acknowledged his indebtedness to Broderick for his timely and effectual assistance. This was done in a com- munication over his own name, addressed to the people of California, after he was elected.* While this senatorial struggle was in progress, there was going on in the territory of Kansas one even more vital to the cause of civil liberty. It was a contest between the Free-State men of that territory and the pro-slavery peo- ple of Missouri and other Southern States, who had gone there, some of them with their slaves, believing that this species of property, according to the doctrine of the Dred Scott decision, stood protected by the National Constitu- tion, and was as secure in their possession as any other kind of property so long as Kansas might remain a territorial government, and always unless the people in their sovereign capacity should, in the adoption of a State consti- tion, declare slavery to be unlawful within its borders. The people of California had not then become generally infcrested in the free-State and pro-slavery contest of Kansas. In the latter part of the year, a convention of pro-slavery delegates met at the town of Lecompton, in Kansas, for the purpose of framing a constitution for the prospective State, a work which the convention performed, taking care to provide for the establishment of slavery as a permanent institution of the State. This provision of the pro- posed constitution was alone submitted to the electors of the territory for their adoption or rejection. Init by another provision of the same instrument, the owners of slaves then in the territory were confirmed in their right in and to them, in the State of Kansas, even though the provision submitted might be rejected. The free-State men demanded a submission of the entire instru- memt, to be passed on by the electors of the territory, which, being denied, they refused to participate in the election. The result was that the question sub- mitted was adopted by a large majority of a very small vote cast. President Buchanan had promised the people that any constitution which might be formed for Kansas as a State should be submitted to them for their adoption or rejection : but upon the reception of the Lecompton constitution, he repudiated his pledge made to the people, and on the 2d of February. 1858, transmitted the instrument to Congress, accompanied by a special message urging the speedy admission of Kansas as a State of the Union under the * Broderick's choice was Hon. J. W. McCorkle, ex-Congressman and ex- District Judge, of Oroville, but, powerful as he was, he could not effect that estimable man's election. As between Latham and Gwin. he preferred Gwin. because of the latter's abnegation in the "Scarlet Letter." — EDITOR. 256 History of the Bench and Bar of California. Lecompton constitution, although, as he in effect expressed it, the instrument had not been fully submitted to the people for their adoption or rejection. Against admission under the proposed constitution, there arose in both houses of Congress a strong oppositon, led by Senator Douglas, of Illinois, with whom was Senator Broderick, who was an uncompromising opponent of the measure. Senator Gwin exerted all his strength in support of it, and from that time the California Senators became bitter enemies. The immediate result \vas that Broderick fell under the ban of the administration, while Dr. Gwin came into increased favor with the President, whose sympathies were more than cordial with those in Congress who were laboring to make Kansas a slave State. Thenceforth the Federal patronage for California was adminis- tered by Senator Gwin. While the question of the admission of Kansas under the Lecompton con- stitution was convulsing Congress, the whole country became intensely agitated on the subject, and the people of California soon arrayed themselves on the one side or the other of the disturbing question. Those who were strongly pro-slavery were first in the arena of the conflict ; those opposed to the exten- sion of slavery were not much behind, and the indifferent waite^ to see the turn of events before choosing sides. The Republicans, then a party of nascent growth in California, were to a man opposed to the Lecompton fraud, and the friends of Senator Broderick were for the most part equally so, but fully three-fifths of the people of the State were either in favor of the e.xtension of slavery, or indifferent respecting the question. In the summer of 1858 the Democratic party met at Sacramento and divided forces on the question of the admission of Kansas as a State under the Lecompton constitution, and questions cognate to the subject. The party from that time became two-winged, and each held its convention and nomi- nated candidates for Justice of the Supreme Court and State Controller, the only two offices to be filled by the election of that year. The administration wing was denominated the "Lecompton" party, and the opposition wing was called the "Anti-Lecompton" party; some called it the "Douglas" party. With the anti-Lecompton wing of the Democracy, the Repub- licans united on the candidates for Justice of the Supreme Court ; but, notwith- standing this, the Lecompton wing carried the election by a fair though not large majority. The California Senators were in their places during the winter of 1858-9, and each devoted his influence on the side of the question he espoused. The leaders of the Lecompton party in California were unscrupulous as to the means which might be employed to make Kansas a slave State. They were for slavery, and hated those who boldly confronted them. They hated Broderick, for his part in the struggle, with malignant personal hatred, and no one of these pro-slavery leaders was more bitterly hostile to Broderick than was Terry, who had declared himself not only the friend of slavery extension, but also of reopening the African slave trade. In June, 1859, the two wings of the Democracy met in the State conventions at Sacramento to place in nomination each a full ticket for State officers. The anti-Lecompton wing was the first to make its nominations. At that time the California Senators had returned home, and were preparing to enter upon the approaching campaign. Judge Terry was placed before the Lecompton convention for the office of Justice of the Supreme Court, as his own successor, but he failed to receive the nomination. It fell to the lot of one of his com- petitors. The nominations having been completed, there was held in the hall or place of the convention, on the evening of the 24th of June, a meeting to ratify the nominations made. At that meeting Terry was called upon to speak, and he responded in a vehement speech, in which he inveighed coarsely and insultingly against the anti-Lecompton party, of which Broderick was a mem- ber and the leader in the State, and against Broderick personally. The par- ticularly offensive part of his speech is here given. He said : History of the Bench and Bar of California. 257 '"Whom have we opposed to us ? A party based on no principles, except the abusing of one section of the country and the aggrandizement of another; a party whose principles never can prevail among freemen who love justice and are willing to do justice. What other? A miserable remnant of a faction, sailing under false colors, trying to obtain votes under false pretenses. They have no distinction ; they are entitled to none. They are the followers of one man, the personal chattels of a single individual, whom they are ashamed of. Tliey belong heart and soul, body and breeches to David C. Broderick. They are yet ashamed to acknowledge their master, and are calling themselves, forsooth, Douglas Democrats, when it is known — well known to them as to us — that the gallant Senator from Illinois, whose voice has always been heard in the advocacy of Democratic principles, has no affiliation with them, no feel- ing in common with them. Perhaps, Mr. President and gentlemen. I am mis- taken in denying their right to claim Douglas as their leader ; perhaps they do sail under the flag of a Douglas ; but it is the banner of the black Douglass, whose name is Frederick, not Stephen." These were the words of the Chief Justice of the Supreme Court of the State, the dignity of whose position, his friends have claimed, weighed heavily upon him. The speech was reported in the Sacramento Union, a newspaper of wide circulation, on the morning of the following day, from which it appeared that it was received by the large audience with great applause and vociferous cheering. This speech was the first immediate, overt offense which led to the Terry- Broderick duel. — a fact which cannot be gainsaid by any one capable of draw- ing just conclusions from given causes, though Terry's friends and admirers have carefully avoided giving any importance to it as an offense, one of whom has gone so far as to justify and excuse it, as clearly within the pale of legitimate debate, and in no sense censurable as a reflection against Broderick. On the morning of the 26th of June, Broderick, while at the breakfast table of the International Hotel, in San Francisco, read the speech of Terry as it appeared in the Union of the 25th. He was disturbed and angered, and spoke of it to a friend next him at the table, about which there were seated a few other persons. He remarked that while Terry was incarcerated by the vigilance committee, he had paid two hundred dollars a week to support a newspaper to defend him, and. continued : "I have said I considered him the only honest man on the Supreme bench, but I now take it all back." Mr. D. W. Perley, a former law partner of Terry, happened to be at the table, and resented the words of Broderick, who cut him short with some curt remark, which Perley deemed offensive to himself. Perley then published his version of what Broderick said, which he endeavored afterwards to have some of those present corroborate, but met with a denial by them of the truth of his story. Perley himself challenged Broderick to a duel, which the latter declined, saying at the time, that he would not allow himself to be drawn into an affair of the kind while the campaign then inaugurated should continue, in which it was his purpose to take a part. Both Mr. Broderick and Dr. Gwin took the stump, and the war of crimi- nation and recrimination between them was bitter in the extreme, and it was so to a considerable degree between the leaders of the two wings of the Demo- cratic party, though there were exceptions to this mode of political warfare. The election was on the 7th of September. 1859, and the Lccompton party won a decisive victory. Tliroughout the campaign the air was full of impre- cations and threats against Broderick. It was believed by his enemies that his death was a political necessity, and that it must be accomplished, if not by the first duel, then by another or others to follow. On the day after the election, Terry, accompanied by his friends. Or. Ashe and Dr. Aylette, on the 8th of September, proceeded by stage from Stock- 258 History of the Bench and Bar of California. ton to Oakland, having willi him the pistols which were- afterwards used in the duel. There they were placed in charge of a Texas friend of Terry, and thence thej^ were taken to the field of the conflict which followed. The parties agreed as to the language used by Broderick respecting Terry, which he regarded as offensive in its nature. It is also to be noticed that the latter did not credit the story of his friend Perley. as to what Broderick had said at the breakfast table. Yet Mr. James O'Meara. after all this, adopts Perley's version of what was said there, and deduces therefrom hi< conclusions that Broderick's remarks were extremely harsh and offensive. ^ Terry's friends have always carefully ignored the fact that his speech before the convention of his party was to be considered as forming any part of the controversy. They assume that the remarks made by Broderick were the first offense, and have given to them an interpretation which is strained to mean that Broderick's words were an imputation against the judicial integrity of Judge Terry, which could be atoned for only by abject and craven humili- ation, or I)y blood. To understand the merits of the controversy between the parties, the order of events should be carefully observed, from which it appears that Terry was the first to give ofifense. In his speech quoted, he charged Broderick and his party as being dishonest, "sailing tmder false colors and trying to obtain votes under false pretenses"; and, in ribald and scornful terms, he denominated the anti-Lecompton wing of the Democratic party as the "personal chattels of a single individual, whom they were ashamed of." as belonging "heart and soul, body and breeches to David C. Broderick." and "yet ashamed to acknowledge their master." These were the words, not of a black-guard in private life, but of the Chief Justice of the Supreme Court of the State. They not only applied to the individuals of the party of which Broderick was the leader, but to him personally, in a most offensive sense, as a master of whom his followers were ashamed, and as one whom they contemned and despised. In the correspondence between the parties, it appears that Broderick re- ferred Terry to the latter's speech as the cause or occasion of his own remarks respecting him, and referred him to the record of that speech in the Sacramento Union of June 25th, the consideration of which Judge Terry chose to disre- gard. Thus it appears that the eviaence touching this branch of the contro- ver.sy between the friends of Terry and the friends of Broderick is of the nature of record evidence, importing absolute verity. Upon this evidence, the questions arise : First — Which of the parties was the first to give offense? Second — Which of the parties was in honor bound to apologize and make reparation to the other? These questions being answered, the ultimate proposition is. Was there any just ground or excuse for the challenge given by Terry to Broderick, even according to the principles of the code of honor, which the advocates of that .system for the settlement of personal quarrels maintain are in accord with the principles of honor, justice, and equity? The particularly dramatic, as well as the terribly tragic, part of the affair, miscalled an "affair of honor," remains to be told. At the time the correspondence between the parties was opened, the physi- cal condition of Broderick. was most unfavorable for the barbarous business upon which he was called to enter, and which he accepted. This was owing to the extraordinary mental and physical strain to which he had been subjected in the Senate, and during the political campaign then recently closed. On the other hand, Terry seemed well prepared by assiduous training for the work which he had had in anticipation for more than two months. PiOth were men of great physical strength, and both of strong mental force; but neither of them was of high educational attainments, nor of nnich culture. History of the Bench and Bar of California. 259 Broderick was known as a man of positive traits and giant will. He was a natural leader of men. Terry was known as a man of strong prejudices and bitter animosities. He believed in enforcing obedience to his will by force of arms. He was a natural and typical leader of the particular class to which he belonged. He believed in the code as an appropriate means for the settle- ment of private quarrels. Broderick recognized its obligations, in deference to the prevailing sentiment of the time. In Terry's first letter to Broderick he said at its close, "This note will be handed you by my friend, Calhoun Benham, Esq., who is acquainted with its contents and will receive your reply." Benham delivered the letter on the even- ing of the day of its date, when Broderick remarked that he would give it attention the next day. Benham urged more prompt action, and from that time the correspondence proceeded at double-quick speed until its conclusion. On the part of Terry and Benham, the object seemed to be to keep Broderick under whip and spur until the work in hand should be fully accomplished. Terry's letter, tendering a challenge, was delivered by Benham to Broderick about one o'clock in the morning of the loth of September. To eflfect the serv- ice of the challenge at this dead hour of the night, Benham waited on Brod- erick's friends at the Union Hotel, on Kearny street, opposite Portsmouth Square, in San Francisco. Broderick was then at the house of his friend, Leon- idas Haskell, at Black Point, a full mile and a half away, where he had gone to obtain a comfortable rest for the night. Benham, by persistent urging, induced Broderick's polite and accommodating friends to have him aroused from his sleep, for the purpose of coming to the city on business of urgent importance. Broderick was accordingly informed of the necessity of his immediate appear- ance at the place appointed, and came over the hills to the city. On his way down Jackson street near Stockton street, he was met by Benham, who delivered to him Terry's challenge, Broderick soon reached the hotel and there found his friends awaiting his coming. He was vexed and annoyed in that they had allowed him to be disturbed and broken of his rest, of which he was sadly in need. By his letter accepting the challenge, Broderick stated the hour when it was received by him to be one o'clock in the morning. The challenge having been given and accepted, a time and place were appointed for the hostile meeting. The I2th of September was the day named. The place designated was in San Mateo county, near the boundary line between that county and San Francisco, not far from Laguna de la Merced. The prin- cipals, with their seconds, surgeons and friends, were on the ground at an early hour in the morning. The chief of police of San Francisco, armed with a warrant, duly endorsed by a magistrate of San Mateo, appeared in due time and placed the principals under arrest. They appeared before the police court on the same day, and, being discharged, arranged for a meeting on the day following. They met early in the morning on the 13th of the same month, at a spot near the place of their meeting the day before. The respective princi- pals were accompanied by their seconds, surgeons and friends, and others curious to witness the conflict, amounting in all to about seventy. Terry's seconds were Calhoun Benham, Thomas Hayes and Samuel H. Brooks. Broderick's seconds were Joseph C. McKibbcn, David D. Colton, and Leonidas Haskell. Terry and his seconds brought with them the "Jo Beard pistols," which at that time were called the "Aylette pistols." At the same time there appeared on the ground a gunsmith of San Francisco, with a pair of duelling pistols, his own property. The gunsmith had been employed, by the mutual agreement of the parties, as armorer for the occasion. Mr. O'Meara and also Mr. Samuel H. Brooks, in his account of the duel, recently published in a San Francisco newspaper, speak of "Natchez," whose real name was Andrew J. Taylor, as the armorer who was on the ground of the hostile meet- 260 History of the Bench and Bar of California. ing. In this they are both in error. The armorer's name was Bernard Le- gardo. At that time Natchez had been dead nearly a year.* It is not true, as Mr. O'Meara says, that Broderick's seconds brought with them a pair of duelJing pistols. They had agreed with Terry's seconds upon the armorer, and they relied upon him for suitable duelling pistols. In the preliminary arrangements of the parties, they cast lots for the choice of pistols. The choice fell to the side of Terry, who chose the "Aylette pistols," and his seconds selected the one of the pair which they desired for his use. and handed the other to the seconds of Broderick. The armorer, Le- gardo, examined them and pronounced them in good order, except that they were too light and delicate on the triggers, of which fact he informed all the seconds, and told one of the seconds of Terry that the one for Broderick was lighter than the other. The armorer so testified at the coroner's inquest upon the dead body of Mr. Broderick, and he further testified that the pistol for Broderick's use was so delicate that it would explode by a sudden jar or jerk. The armorer asked McKibben why he did not force on his principal hi-- (the armorer's) pistols, to which McKibben replied that Terry had won the choice of weapons. The armorer then loaded the pistol to be used by Broderick. and Mr. Brooks loaded the one selected for Terry, which was delivered to him. and the one for Broderick was delivered to him. who, upon receiving it. anxiously examined it. turning it about, scrutinizing it and measuring its stock with his hand. In Mr. Oscar T. Shuck's sketch of David S. Terry, in "Bench and Bar in California" (A. D. 1889). he gives the statement of an eye-witness to the bloody affair, written only a short time thereafter. This eye-witness said: "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 the pistol with the conformation of his hand, he presented to the observer an unsatisfied appearance. This was shown by more than one move- ment." And the same witness said : "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 a great disadvantage." Even after the words, "Gentlemen, are you ready?" were pronounced, and Terry had responded "Ready," Broderick spent several seconds in examining the stock of his pistol, which did not .seem to fit his hand, and then he answered "Ready," with a nod to his second. General Colton, who had announced in the beginning, "Gentle- men, are you ready?" — and then followed the words, "Fire — one — two," in the measured strokes of the Cathedral clock. Broderick fired first, as the word "one" was pronounced. Terry's shot followed at the point of time the word "two" was commenced utterance. Broderick's shot was spent in the ground some four or five yards in advance of him, in a direct line between him and his adversary. Terry's shot took effect in Broderick's right breast, producing a mortal wound, from which he died three days afterwards.* Upon receiving the pistol selected for him, and loaded for use by his friend, Brooks, Terry seemed composed, resting it upon his left hand as he held it with the other. He exhibited no concern as to its stock, formation, or shooting qualities. Until it was definitely settled that he had secured for his use the * "Natchez had been armorer at the fatal duel between Hon. Geo. Pen. Johnston and Hon. Wm. I. Ferguson, at Angel Island, San Francisco bay, Aug- ust 2ist, 1858. He shot himself in his shooting gallery. * The correspondent of a New York paper narrated that as soon as Brod- erick fell, the owner of the ranch, who had been silently regarding the pro- ceedings, started to his feet and shouted, "That is murder, by God !" He moved toward Terry, as though intending to assault him. He was intercepted by by-standers. who said that it was folly to provoke additional bloodshed. He History of the Bench and Bar of California. 261 pistol of stronger trigger, the same witness said "he seemed agitated, and measured the ground in his direction with an uneasy and anxious tread." But with his chosen pistol in hand, and the extremely delicate and dangerous one in the hands of his opponent, he took his position with firmness and com- posure, watching every movement and expression of his adversary. From the beginning of the correspondence until Broderick fell mortally wounded, the conduct of the Terry party was distinguished by an intensely earnest and fiercely aggressive spirit, which showed them bent on winning the fight at all hazards. The deportment of Terry's seconds on the ground was determined, bold, and confident, which was in marked contrast with the respect ful and deferential deportment of Broderick's friends, in the presence of thei. adversaries. When the respective principals had taken their positions, as yet unarmed, they were each subjected to the customary examination of their persons for concealed armor. McKibben's office was to examine Terry, and that of Ben- ham to examine Broderick. Each of these seconds proceeded to the examina- tion. McKibben approached Terry in a gentle and respectful manner, pressed the back of his hand against the latter's breast, and then fell back with a courtly bow and a wave of his hand. At the same time, Benham was manipulating and searching Broderick up and down his person, as if he verily believed he had upon him an impenetrable coat of mail. Broderick was greatly disturbed by Benham's conduct, and indignantly said to a friend near him that Benhapi had treated him as an officer would search a thief for stolen property. The contrast between the conduct of McKibben and that of Benham was so marked as to attract the notice of those present. Broderick's friends felt indignant as they saw him thus openly insulted, and those of them still living well remem- ber it to this day. Tlie examination of Broderick's person being finished, Benham stepped to the position of his principal, and, covering the side of his mouth with his hand, whispered in Terry's ear, which the latter seemingly acknowledged with an approving smile. Some time after all this, Benham acknowledged to a friend of Broderick, who took exception to his conduct and mode of examination, that it was not courteous, but excused himself on the ground that his principal's life was in his keeping, and he was bound to do whatever was necessary to protect him. It cannot be reasonably claimed that there could be any advantage on the side of Terry in that he nad the choice of pistols, provided they were ordinary duelling pistols and in all respects alike, and equally unknown to both parties. It is said by those who have seen these Aylette pistols that in stock or breech construction they are unlike ordinary duelling pistols, and the manner in which Broderick scrutinized and handled the one given him, and his efforts to fit his hand to it, was evidence that he was wholly unacquainted with it. On the other hand, the manner of Terry in respect to the pistol provided for his service, and his quiet unconcern as to it and its shooting qualities, was evi- dence that he was acquainted with both of them. It is susceptible of proof that, only a short time before the Terry-Broderick duel was fought, Terry and Dr. Aylette repaired to the place of a farmer in San Joaquin county, where they practiced shooting at a mark with the pistols brushed them aside, exclaiming, "1 am not going to see him killed in that way. If you are men, you will join me in avenging his death!" "We know you are Mr. Broderick's friend, but we know as well that if you attack Terry there will be a general fight, and but few will get off" this groimd alive. Think a moment before you do this thing." Luckily, this scene was not witnessed, nor the remarks overheard, by any of theTerry partisans, else there would have been a bloody conflict, whether' their leader had been attacked or not. The milkman was quieted and sat himself down, breathing thrcatcnings of slaughter. — liPITOR. 262 History of the Bench and Bar of California. in question. Charles C. Knox, for many years a business man in Sacramento, states that Terry had in his possession the same pistols while a Justice of the Supreme Court, at the State Capitol, and he further says that a few days before the Terry-Broderick duel, he was at Haywards, in Alameda county, and while there the stage-coach arrived on its way from Stockton to Oakland, with Terry, Dr. Ashe and Dr. Aylette as passengers. At Haywards they were met by a large number of their friends, who had come in several carriages from Oakland, to whom Terry and his traveling companions exhibited the Aylette pistols, and then they were given in charge of some one or more of their Oak- land friends. Mr. Knox .says Mr. Hayward, the landlord of the place bearing his name asked him: "What is up that brings together such a lot of Chivs?" Dr. Washington M. Ryer, a practicing physician at Stockton in early times, says Terry was in the habit of practicing with the .A^ylette pistols at his place in Stockton, in 1857. The evidence already produced more than tends to show that Terry was well acquainted with the Aylette pistols, by frequent use of them before they were brought into requisition on the field of the conflict. Upon this point it may be said the evidence is substantially conclusive. From what the gunsmith testified before the coroner's jury, there is no doubt respecting the dangerous character of the weapons, and especially of the one appointed to the lot of Broderick. This account of the gunsmith was confirmed by what Mr. Broderick said on his dying bed, as appears further on. Mr. O'Meara says the pistols in question had been used, before the Terry- Broderick duel, in several affairs of honor: "that they were so exactly alike in every respect that no difference had ever been discovered in their shooting qualities. They had hair-triggers, evenly and equally adjusted." The phrase, "their shooting qualities." is ambiguous. That their hair- triggers were evenly and equally adjusted is not sustained by the established facts. It is quite certain they were not evenly and equally adjusted on the morning when used by the two principals named. The next day after the duel transpired, the pistol which fell to the lot of Broderick came into the possession of the captain of the detective force of the police department of San Francisco, who experimented with it for the purpose of testing its alleged trigger infirmity. By a simple experiment, he demonstrated its extremely dangerous character in the hands of any one unaware of its eccentricity. With the hammer of the lock set, he caused it to spring by blow- ing vigorously from his mouth against the trigger. The success of the experi- ment was known at the time, and can now be proved by the captain himself, who is still in the possession and enjoyment of a strong and retentive memory.* A few years before his death, Jo Beard, who at one time owned these pistols, told his friend, Frederick H. Waterman, of San Francisco, that there was something peculiar about these pistols — that they were not alike — that one of them was tricky, but the other was a lucky pistol that always killed. Jo Beard was a personal friend of Terry, in full sympathy with his pro-slavery views. t The same pistols were used in the duel between Dr. Washington M. Ryer and Dr. Samuel Langdon, which occurred at Stockton, in i(S57. Dr. Langdon, the challenged party, chose the Aylette pistols for the conflict. Each took one of them for the purpose of preparing in advance for the duel. Dr. Langdon selected for his use the weapon of stronger trigger. Dr. Ryer was then ignor- ant of the difference between them. In practicing with the one that came * He has since been chief of police, and still lives in San Francisco. —EDITOR. t Joseph R. Beard was clerk of the Supreme Court during the years 1H55- 56. He died in San Francisco, March 17, 18S7.— EDITOR. History of the Bench and Bar of California. 263 to his hands he discovered its tricky character, but, with all his care in guarding against its eccentric characteristics, he was unable to fully overcome it. After- wards, on the field, he said that, with all his caution, he was not able to bripig his pistol to a horizontal position before it became discharged. At the third round he succeeded in raising it as high as the knee of his adversary, in which his third shot took effect, and so ended that duel. Dr. Ryer says that during the exchange of shots, the bullets from the pistol of Dr. Langdon whizzed unpleasantly past his ear, thus showing that the latter's pistol was not afflicted with the infirmity peculiar to his own. Elliot J. Moore, for the last forty years a resident of San Francisco, a lawyer of highly reputable standing, and in early times a state senator of admitted intelligence and integrity, was an intimate friend of Broderick, and was with him when the duel took place.* He remembers the incidents of that bloody affair with a vividness which the laose of time can never efface. He says that when the seconds of the respective principals, and others with them, were huddled together selecting pistols, he and Broderick were together some distance away. When Broderick became apprised of the fact that Terry's seconds had brought to the ground a pair of duelling pistols, and that the seconds of the two principals were then engaged in casting lots for the choice of weapons, he seemed uneasy and expressed himself as not being able to understand how it was that the armorer, selected by mutual consent of the parties, and then standing apart, was not consulted, but seemed to be entirely ignored. Broderick had supposed the armorer was to nrovide the weapons for the occasion. He complained of the inefficiency of his seconds, who, he had become convinced, were not the equals of the seconds of his adversary. He spoke of them as children, and expressed apprehensions lest they might unwittingly "trade awav his life." It is evident that Broderick was not aware of Terry's acquaintance by practice with the pistols prior to the duel. The outspoken suspicions on the subject were withheld from him when on his dying bed. His experience with the weapon placed in his hands was to him a surprise and disappointment; for, while conscious that he could not recover, he told his friend, Moore, that he did not touch the trigger of the pistol as he raised it, but that the sudden movement in raising it caused it to explode before it was brought to a level. Jo Beard's confession, the gunsmith's testimony, Dr. Ryer's, statement Broderick's dying declaration, and the detective captain's experiment, well establish the anomalous trigger qualities of the weapons, especially, as to the one assigned to Broderick. In addition to this direct proof are the circum- stances of the production and selection by Terry and his friends of their favorite and cherished weapons, and their extreme care to secure the safer one for his use. Terry's friend, Mr. O'Meara, states the fact to be that the respective parties mutually agreed upon the employment of the gunsmith as armorer for the Terry-Broderick duel. Of this fact there seems no reason for doubt. But on the ground, the armorer was required to stand aside, except that he was allowed to examine the pistols chosen, and to load the one handed over by Terry's seconds for Broderick's use. Colonel William W. Gift was a democrat, reared in Tennessee under the immediate influence of General Andrew Jackson. He was widely known in California for his peculiar and forcible modes of expressing his opinions Immediately after Broderick was shot down, he gave vent to his indignation, and denoimced in strong language the management of the Terry party in their introduction and selection of the pistols in question for the purposes of the duel. He declared that Terry had told him that he himself owned the pistols. * Mr. Moore, who died after this was written, was a Southern man. —EDITOR. 264 History of the Bench and Bar of California. Colonel Gift was a believer in the code, but regarded it as a system which required fair and equal dealing between parties engaged in "affairs of honor." The evidence relating to the point under consideration is both direct and circumstantial, and from it the conclusion follows in logical sequence. The great and fatal mistake of Broderick's seconds was in submitting to a negotiation which opened the door to the selection of any pistols not pro- vided by the armorer, upon whom the respective parties had mutually agreed for the purpose. The arrangement to that effect operated to set aside the agreement mutually entered into to employ the gunsmith. Legardo, for the office of armorer. The death of Mr. Broderick. it is believed by many, was the consequence of this fatal mistake. By persistent asservations, made in the face of the evidence to the con- trary, the duel has been represented as fair and equal in all respects, and Brod- erick's seconds have contributed their full share to so represent it. Perhaps they thought so ; but Broderick's friends have ever, with great unanimitv. thought otherwise. The personal treatment of Broderick from the beginning to the end by his antagonist, and his second, Benham, in arousing him from his sleep at the house of his friend at the dead hour of the night, and the mode and manner of the examination of his person on the field of the conflict, seemed designed to worry and wear him out, and to unnerve and unfit him for the ordeal in prospect. Added to such treatment, the introduction on the ground of the Aylette pistols, and their selection and distribution for the work in hand, made sure of Broderick's discomfiture and death. THE EDITOR. LYNCH LAW IN CALIFORNIA •By JOHN G. JURY John G. Jury ■isufe (fe (5a & (&I& (^ dSb t^a^ HISTORY of the BENCH and BAR of CALIFORNIA ^ op (^ 3^ ejr. ejp b^^. eg. cja e;^. LYNCH LAW in CALIFORNL\ "Out of this nettle, danger, we pluck this flower, safety." — Shakespeare. "All eye for an eye; a tooth for a tooth; a Hfe for a hfe." Such is the law that first possesses the soul filled with a sense of outrage and frenzied with passion. "Whoso sheddeth man's blood, by man shall his blood be shed," is the Scriptural canon behind which vengeance has retreated since the days of the patriarchs. In no era of the world's history, it may be said, has action upon these primitive laws been more fervently upheld, than during the first decade of California's history as a State. Attracted by the discovery of gold, men from all quarters of the globe flocked to California. Every moral, social and intellectual stage of society was represented in the mining camps of the State. Lawyers, physicians, clergymen, farmers, merchants and laborers in all fields of industry, left their homes for that land whose very name had suddenly become in all the earth, a synonym for opportunity and fortune. An exodus into newly discovered fields, that offer wealth as the prize for hardship, is proverbially composed of all sorts and conditions of men. The industrious and the ambitious see in such a country the occasion for exercise of great physical, moral and intellectual vigor; the despairing are stimulated to new endeavors; the hopes of the down-trodden are revived; and the greed of the desperate and the vicious is inflamed. Thus the common love for wealth and power may be aroused either to encourage or to curse. And so in California in early days, men of widely divergent types, pos- sessed of radically different ideals, struggled side by side, having but one aim in common, the desire to acf|uire a fortune. An outcast from a foreign criminal colony might occupy the same room, eat at the same table, labor at the same vocation, and join in the same pastimes, with a young man who had come from one of the most refined homes in the East. This commingling of men, irrespective of education and of former habits of Hfe, while affording 268 History of the Bench and Bar of California. much of romance, could not but result occasionally in great and unexpected tragedies. Time must, where such conditions exist, be depended upon to reveal the true differences between men, and the ardor of the people in early California served to bring about rapid and startling revelations in this respect. As a young pioneer from Missouri once said, "If a man has a mean streak about a half an inch long, I'll be bound if it don't come out on the plains." The prevailing crudeness of life, the insecurity of tenure of valuable land rights, the prevalence of saloons, and the absence of women in the camps, tended, also, toward the encouragement of lawlessness and crime. It is not to be expected that out of such a chaos of conditions, the swift and ever axailable measures of vengeance should not have occasionally been brought into use for the purpose of redressing great and execrable wrongs. The very exigencies of the times often demanded harsh and unusual meas- ures. The machinery of the law was either unorganized, or lamentably imperfect, in those localities where there was most need for the service of the law. The customary restraints, which in long established and well organized communities, insure safety and order, were, for the time being, greatly weakened, and, apparently, in times of great popular passion, almost entirely absent. Family pride and social prestige were at first little thought of, for the reason that most of the earlv comers to the State regarded them- selves as little more than sojourners in a distant and foreign land. The pioneers in California were for the most part a law-creating and law- abiding people. Their sturdy independence, their virile hatred of crime in all its forms, and the habit they had cultivated of accomplishing things effect- ively, prompted the occasional use of ill-considered, and in particular instances it may be, of barbarous methods, in dealing with the criminal classes. No definite lines of demarcation can be traced between the various systems or measures devised by the pioneers for their government and protection. All conceivable gradations of justice existed, from the substantially fair and humane, to the most violent and fiendish in character. The particular quality of any special form of law is not, of course, revealed in its name. The term "lynch law" was seldom used because of the disrepute into which the term had fallen. The less harsh terms, such as "Miners' law." "Vigilance Committees," "Regulators," "Committees of Safety," etc., served to denomi- nate the work of punishing offenders through the power of the people directly administered. Some writers, however, have drawn a distinction between miners' law and lynch law. Mr. Shinn, for instance, in his work, "Mining Camps," (page 230), says: "Lynch law, as we know it, through certain too familiar news- ])aper items from a number of rural districts in our South and West, is sudden in its action, creates no true precedents, keeps no records, shuns the light, conceals the names of its ministers, is generally carried out in the night by a perfectly transient mob, expresses only popular passion, and is. in fine, essen- History of the Bench and Bar of California. 269 tially disorderly. Miners' law was open in its methods, liked regularity of procedure, gave the accused a fair chance to defend himself, was carried out in broad daylight, and by men puljlicly chosen ; and when State and county organizations were sufficiently developed to take its place, it gladly resigned its sceptre to the regular officers of the law." It is evident that a better test, than that given by Mr. Shinn in the extract quoted above, must be applied to uncover the differences between lynch law and those forms to which lynch law is opposed. Consideration must be given in this connection to the special conditions existing in each community; the temper of its citizens; and its special 'rules and customs in the absence of any settled laws. It is, indeed, doubtful whether miners' law, as defined by Mr. Shinn. can stand the test he himself applies. That the difference between miners' law and lynch law is unsubstantial may be shown by reference to the miners' attitude respecting the settlement of land disputes. The crude sense of justice in the rough, self-reliant and honest miner prompted him to rebel against what was conceived to be the incursions and interferences of State and national laws and regulations. The miner's first impulse was to act for himself, irrespective of legislation, imposing the observance of certain formali- ties in acquiring mineral lands. In this, as in other matters, a bona fide com- pliance with the spirit of the laws, and substantial adherence to the customs of the camp, were sufficient to justify him in defending his land with his life if necessary. The self-reliance and spontaneity of the pioneer miner sprang into boldest relief, however, when, under the general excitement following the commission of some atrocious crime, punishment must be devised and meted out to the offender. Miners' law, vigilance law, and their kindred forms, then revealed their true character. All such methods of dispensing justice, or of avenging wrongs, which are under the control of an unauthorized or self-appointed body of men, and dependent upon their judgment, whims and caprices, possess in reality the essential elements of lynch law. While many and perhaps the majority of vigilance and miners' trials, were orderly, and resulted in visiting upon criminals condign punishment, still the opportunities and tempta- tions were ever present to misuse the power thus exercised. Aside from what was deemed to be the chief justification for miners' law, etc., — "the absolute and imperative necessity for its use," — much of the favor in which such laws were held was probably due to the general indefiniteness of distinction which prevailed as to their real character and methods of pro- cedure. And this endorsement was sometimes accorded by men in high |)laces who would shudder at the thought of encouraging lynch law. The lines between anti-vigilance and pro-vigilance men in the towns and cities throughout the State, were sharply drawn, and feeling lietween the two factions often became intensely bitter, resulting at times in open conflict. The pro-vigilance forces were necessarily in the majority in the cities and camps where vigilance or similar organizations existed. 270 History of the Bench and Bar of California. Many California newspapers, during the early fifties, strongly defended miners' law upon the ground of necessity. The Sacramento Transcript, for example, on February 12, 1851, in commenting upon a case at Bridgeport, a town on Deer Creek, in which a dishonest partner was tried, convicted and sentenced to a severe Hogging, says: "This is the only sure means of admin- istering justice, and although we may regret, and deem lynch law objection- able, yet the present unsafe sort of prisons we have, and the lenity shown offenders, are such as to induce us to regard such an exercise of power with comparative lenity." As representative of the views of the anti-vigilance element. General W. T. Sherman, who was in command of the Federal troops in San Francisco during the year 1856, that being the year in which the Vigilance Committee in that city held full sway, in a letter written at the suggestion of Justice Field in 1868, says: "You and T believe that with good juries, Casey, Cora, Heth- erington and Brace could lia\e been convicted and executed by due course of law. You and I believe that San Francisco had no right to throw off on .other communities her criminal class, and that the Vigilance Committee did not toucli the real parties who corrupted the legislature, and the local gov- ernment. Again, if the good men of any city have the right to organize and assume the functions of government, the bad men have the same right if m the majority." Lynch law ajjpears to be rooted in the theory of the guilt of the accused from the time of his arrest. That most salutary rule of law that the defend- ant is presumed to be innocent until the contrary is proved, is subverted, and the door is thereby thrown open to prejudice, unfairness and error. When a hearing is given the accused by a lynching party it is conducted in the most perfunctcjry manner, and without regard for those principles of evidence founded in justice, and designed to clear the pathway to truth. The charac- ter of the punishment to l)e inflicted is left to the spontaneous and often cruel ingenuity of the crowd. The safeguards which the experiences of mankind have settled upon as l)eing necessary to the proper administration of justice, are thus disregarded or swept aside in the excitement and haste which almost invarial)ly characterize lynch law proceedings. \^iewed from this standpoint, lynch law. miners' law and vigilance law, regardless of how orderly, or how violent their methods may have been, were essentially the same in character. In the full light of a righteous law the various forms which existed in Cali- fornia in defiance of the regularly constituted authorities, or in disregard for the principles of civilized jurisprudence, should all be classed in one category, and given one name, lynch law. The uncontrollable lawlessness existing in many early California commu- nities, and the lack or utter inefificiency of means for dealing regularly with such a condition of affairs, forced the pioneers to the use of extreme measures at times for the purpose of protecting life and property. In such exigencies, History of the Bench and Bar of California. 271 lynch law in the minds of some found sufficient provocation if not reasonable justification. Only a fair understanding of the dangers prevailing in camp and city can serve as a basis for judgment upon the question whether the use of lynch law^ was ever justified as a means for suppressing or punishing crime. It might be interesting to recount briefly a few chapters in the story of the struggle for order in California's early history, with the end in view of illustrating more specifically the character of lynch law^ its methods and its results. -^ One of the first instances of the application of lynch law in California was in proceedings taken in January. 1849, fi'om which Hangtowai, now Placer- ville, derived the former name. The facts appear to be about as follows: Five men had l:»een caught in the act of attempted robbery and larceny. The feeling of tlie miners ran high, as it generally did in cases of robbery, larceny and murder. No court, it seems, was organized in the town, hence, a pro- visional judge and jury w^ere called to try the case. The proceedings were conducted in an orderly manner and the sentence rendered that the prisoners should be given thirty-nine lashes each. Hardly had the sentence been executed l^efore other charges were presented against three of the men for robbery and attempt to murder, committed on the Stanislaus River in the pre- vious autumn. A jury of all the miners in camp, about two hundred in num- ber, heard the evidence and sentenced the unhappy prisoners to be hanged. Only one man seems to have protested against the sentence, but his protests were quieted under threats of death. The defendants suffered the penalty thus imposed upon them. Tlie man who strenuously protested against the execution was Lieut. E. G. Buffum. The attitude of the miners toward Lieut. Bufifum was prompted by anger and impatience, due perhaps to the fact, that, in their view, the prisoners had as fair a trial as the circumstances would w^ar- rant. and when the sentence was pronounced they would brook no delay. Although it ma,y be said the punishment devised for the offenders was swift and merciless, yet even here is presented the beginnings of order; the regard for law is illustrated in the adherence, imperfect and prejudiced though it was, to those forms and methods of procedure wMth which the citizens were already ac(|uainted. Ford's Bar, on the middle fork of the .American River, had, as early as May, 1849, ^ccjuired the reputation of being the worst place on the rix'cr. Tn the month indicated a drunken row between two of the miners occurred at this place. One of the combatants was struck .so violently with a crow1>ar that he fell into the stream. The other follow^ed, and the two infuriated men fought in the w^ater. The fight almost resulted in a general combat between the friends of both parties. Better judgment prex-ailed, and after calm was restored, seeing that recurrences of such disgraceful scenes should be pre- vented, the men called a meeting and voluntarily agreed upon a few simple rules calculated to secure the peace and quiet of the camp. The code of laws 272 History of the Bench and Bar of California. thus improvised provided for the trial of certain specified offenses by a jury consisting of three persons. It is amusing to read the first application of the law, thus devised, to the case of a tinker who had been arrested for assaulting a party with a junk bottle. His antagonist retaliated by drawing a knife and with it inflicting several severe cuts and gashes upon the tinker. Both men were arrested and taken before Alcalde Graham, who evidently was the lead- ing spirit in the administration of justice in the camp. The tinker, although the offending party, was acquitted "because there was no law against using a bottle as a weapon." while his antagonist was convicted of unlawfully drawing a knife, an offense which had been expressly legislated upon in their simple code of laws. This incident illustrates in an amusing way the layman's view of the established principle of the common law, that criminal statutes must be strictly ccMistrued. It may be well imagined that the decision of the alcalde met with much disfavor in the camp, for ordinarily such refinements were given scant approval. The feverish haste exhil)ited at lynch law proceedings may be illustrated by a case which occurred in Columbia, Tuolumne County, on Wednesday, October loth, 1855. A man named John H. Smith became involved in a ijuarrel with the proprietress of a saloon, during which quarrel he was fatally shot b}- the husband of the woman, who, on coming from an adjoining room into the barroom where the quarrel was going on, fired upon and killed Smith. John S. Barclay was the name of the murderer. The direction given to the trial and other events which followed was determined principally by the attitude of James W. Coffroth, a popular man in the camps, who had just been elected to the State senate. Coffroth, in his regard for his deceased friend, allowed his passions to dominate. He vehemently demanded that A'engeance 1)6 meted out to Barclay for the crime. The mob was stirred to frenzy by Coffroth. No thought, however, was entertained of visiting punishment upon the offender without a show at least of fairness. The crowd gathered about the jail, and a judge, marshal and jury of twelve persons were" impressed into service. The iron doors were then forced open and Barclay, who had hoped to make his escape through the crowd, was seized and carried off by the excited people amid cries and imprecations. In the impromptu trial, Coffroth acted as the prosecuting attorney, and John Oxley, a man of firm and noble purposes, defended the i)risoner. Coffroth was insistent upon revenge, and in his shrewd way invoked in behalf of the people, the law cjuoted at the head of this j)ai)er : "An eye for an eye : a tooth for a tooth ; a life for a life." The text. "Whoso slicddeth man's blood, by man shall his blood be shed." was also used to lend strength and the semblance of sanctity to his case. Despite the protests of Oxley and his appeals to the people a.sking them to reflect on what they were about to do. amid cries for the life of the prisoner. Barclay was told to prepare himself for the execution which awaited him according to the sentence. The sheriff of the county. J. M. Stewart, made an ineffectual at- History of the Bench and Bar of California. 273 tempt to rescue the prisoner, but was beaten back and hustled away from the scene. While the sheriff was thus being fought off the prisoner was hanged. His arms were left unpinioned. His convulsive clutching at the rope while hanging in mid-air. were greeted with derisive cries and yells from those who looked on. This in brief is the story of one of the most barbarous cases in the annals of lynch law. Another extreme case was that of the lynching of a woman for the crime of murder committed on July 5th, 185 1, at Downieville. The story of this re- volting case is told by Mr. Hittell in his excellent history of California (Vol. 3. page 307), as follows: "It was one of the sequels of a great Fourth of July celebration. John B. Weller, afterwards Governor of the State, had been announced to deliver an address, and a very large crowd congregated to hear him — the miners and settlers coming in from all the camps in the neighborhood. .After the regular exercises of the day, there was much drinking and carousing ; and in the evening, when it began to grow dark, a number of the revelers started out staggering through the streets, hooting and howling, beating on houses and breaking open doors here and there as they went. Among other places attacked was a house occupied by a Mexican woman called Juanita and a countryman of hers, who kept a monte table. One of the revelers, and perhaps the most hilarious of them, was a Scotchman of large size and great physical strength, known as Jack Cannon. He seems to have been acquainted with the woman, or at any rate went to make her a visit the next morning. Some said his object was to apologize and pay for any damage he had done ; but this does not appear to be probable. Whatever his object may have been, he was seen to go up to the door, where the woman and her Mexican friend were standing, and was heard to address her with a vulgar expression. She immediately turned back into the house and entered a side room, leaving Cannon leaning with a hand on each side of the doorway, convers- ing with the man. In a moment afterwards, however, she came back, holding one hand behind her, and rushing forward she plunged a long knife with all her strength into Cannon's breast and killed him." "The news of the homicide spread like wild-fire. It took but a little time for an immense crowd to collect. They were not fully over the effects of their dissipation of the day before; but their e.xcitement took a new direction; and it was now for vengeance on the murderer of Jack Cannon, who had been a jolly good fellow and popular with everybody. On the first indication of this feeling, the woman had left her own house and entered the saloon of one Cray- croft for protection. But the crowd soon surrounded Craycroft's, and, seizing the woman, carried her to the main plaza of the town, where the stand erected for the exercises of the day previous still remained. Her Mexican friend con- tinued with her, while the body of Cannon was exposed in a tent near by. Upon arriving at the plaza, the first things done by the crowd were to select a judge and jury and appoint counsel for the people and the defendant respectively. There was little for the prosecution to do; but the attorney for the defense received very bad treatment. Seeing that he could say nothing of importance in reference to the killing, he confined himself to the enormity of hanging a woman, and put that enormity in so strong a light that the mob became mad- dened and kicked the barrel on which he stood, from under him— his hat going one way and his spectacles another, while he himself was carried at least a hundred yards, hustled from side to side, before he touched the ground. Next a doctor, named C. D. Aiken, attempted to save the woman by claiming that she was about to become a mother; but as is usual on such occasions, other doctors were found to express a directly contrary opinion ; and the result was 274 History of the Bench and Bar of California. thai Dr. Aiken was ordered to leave Downieville, and found it safest to do so. The infuriated crowd would evidently suffer nothing to be said or done in favor of their victim, and would brook no opposition to their predetermination to be avenged. The end was not long coming. The jury in a very short time re- turned a verdict of guilty; and the judge, without waiting to be prompted by the crowd, sentenced the woman to be hanged. She was given only an hour to prepare for death, while arrangements were made on what was known as Jersey bridge for her execution. A rope was fastened on one of the projecting upper timbers, while beneath it a plank, six inches wide, was pushed out over the stream and lashed to the floor timbers of the bridge. At the end of the hour the woman was brought to the place and stationed on the plank. There were several thousand spectators present. The woman, of course, knew what was coming; but she appears to have been perfectly cool and collected. She sur- veyed the crowd and spoke pleasantly to several of her acquaintances. She took off her hat and handed it to one of them, bidding him good-bye in Spanish. She then took in her own hands the rope that was being thrown over her neck and adjusted it beneath her black hair. A white handkerchief was fastened over her face; her hands were tied behind her; and at each side of the plank behind her a man, ax in hand, stood ready to cut the lashings. At the report of a pistol, which had been agreed upon as a signal, down came the axes ; the plank dropped, and Juanita fell three or four feet, and remained suspended. Consciousness was apparently extinguished instantaneously upon the fall; and death was rapid." l*ei"haps the best cjrgaiiized and least oljjectiunable form of lynch law was that exhibited by the Committee of Vigilance of San Francisco, organized June 9th, 1851, and reorganized May 14, 1856. There had been vigilance committees in other towns in the State, yet that which was formed in San Francisco on the dates given above undoubtedly deserves the reputation of being the best conducted and most strikingly impressive organization of the people for dealing w ith crime, outside of the regular courts of justice, that has ever been established in any age or place. It has been said of a vigilance com- mittee that it will itself break the law, but it does not allow others to do so. The doctrine of vigilance, as of lynch law in general, is based upon the theory that the people have the right to hold perpetual vigil over all their institutions and to ccjrrect. where necessary, abuses and corruption which threaten the security of their lives and property. It is civil revolution as opposed to civil rel)e]h'on. This right, if such it l)e, may be exercised, it is claimed, in the ex- tremity of necessity arising out of the prevalence of crime and the immunity of law-breakers from punishment. Vigilance proceeds upon the principle that if the law is notoriously inadequate to reach and efficiently punish law-breakers, it would be a greater crime and wrong upon the public to permit such lawless- ness and corruption, than to supersede the recognized authorities by a new organization which shall deal more effectively with such evils, than the courts through venality, or some other weakness, are able to do. The stern judgments reached by the Vigilance Committees in San Fran- cisco, were characterized by unselfishness, and above all by an unquestionable solicitude for the public welfare. Yet even this organization, made up for the most part of good citizens, could not find more than passing favor among History of the Bench and Bar of California. 275 the citizens of the State. Only the greatest necessities evolved from the con- ditions of the times, could warrant the creation or existence of a tribunal of men whose work was so revolutionary in its purposes and results. The double executions of James P. Casey and Charles Cora on May 22, 1856, and that of James Hetlierington and Philander Brace on July 29th, in the same vear. were most spectacular exhibitions of the method in which the Vigilance Committee of San Francisco dealt wnth the city's criminals. These men were tried by the Vigilance Committee for henious offenses, con- victed and sentenced to l)e hanged. The terrible earnestness of the committee and the expedition shown by it in dealing with these representatives of the most depraved and desperate class that have ever infested any city in America, ga\e rise to almost revolutionary conditions, Thcmgh bitterly opposed by the regularly constituted State and city authorities, the Vigilance Committees of San Francisco were instrumental in putting a stop to street murders, law- lessness at elections and in effectually lessening corruption in the courts. These residts in San Francisco, and similar results reached elsewhere through- out the State, stand as the sole justification for the existence of organizations based necessarily upon the doctrine that the safer and less violent methods afforded by courts of justice must, when notoriously inefficient, be either undermined or entirely superseded by force. The most conspicuous weakness of lynch law proceedings is probably found in the haste and lack of deliberation shown in the treatment of crim- inals. The fact that the culprit was tried in most instances while the passions of the ])eople were at white heat, militated against justice and provoked the infiiction of cruel and unusual punishments. The modern cxil of i)rocrastina- tion in dealing with criminals finds its opposite in the precipitance manifested in the early history of crime in our State. Both methods are reprehensible. As civilized society has always shrunk from punishing the innocent, the ex- treme care taken in this respect has often resulted in a failure to punish the guilty. On the other hand, where proceedings are irregular and overhasty, the greater danger that the innocent be made to suffer is ever imminent. The temptation to magnify the spectacular events in the life of a people, and to correspondingly minify the less conspicuous, yet ecjually if not more important happenings, is so strong, that treatment of a subject such as that now under consideration, is likely to lead to exaggerated and false ideas. Notwithstanding the prevalence of crime — the common curse in new gold fields, — California from almost the day of its birth as a State was firmly established upon the fundamental principles of civilization. Tt has been said that "the courts of justice in California, were in early times e(|ual. if not superior to those of anv border settlement founded since the days of Justin- ian"; and, if since the days of Justinian, may it not be truly said for all time? In almost all the mining settlements of the State during the winter of 1849-50, an alcalde was chosen to preside at trials and also at lynch law pro- 276 History of the Bench and Bar of California. ceedings. Mr. Hittell. in his wurk un the history of Cahfornia, says in this connection : "In the absence of regnlar law, and on account of the unsettled state of the country, the authority he (the alcalde) exercised was very ex- tensive and sometimes arbitrary; but he could only hold his office so long as ins action gave satisfaction to the community ; and he was consequently re- strained from committing any great excesses. On the other hand, the miners in general treated him with respect. He was the general conservator of the peace and preserver of order, and in many and perhaps the majority of camps, where the office was filled by a (|uiet. firm and unobtrusive man, there was as good security and as complete protection to life. limb, property and per- sonal rights as anywhere else in the world." No trace of general disorder in California can be surmised from reading the records and decisions of the courts, no indications of anarchy, or of a state of social being different from that of the then most enlightened states of the East. Genius directed the destinies of California from the time her gold fields attracted the attention of the world. Her early jurists, lawyers, statesmen, orators, literary men and organizers of industry, were men of large purposes, of lofty ideals, and of untiring, creative energy. The erudite and fearless Field; that intellectual storm-cloud, Terry; the modest, eloquent and soulful Baker: the able IMc.Vllister ; the brilliant and eccentric Lockwood ; the industrious Haymond; the wise and genial Baldwin; all were representa- tives of types which have created for California, in the annals of government and law. fame and substantial eminence as a highly civilized state. Names prominent in other branches of public activity might be added to the list, but those given will illustrate the conspicuous wealth of ability in California from the date of her entry into the Union. ■ Forgetting the reactionary effect scenes of violence exert upon those who take part in them, remembering the sacrifices the pioneers of California were ever ready to make, and remembering, also, their honesty of purpose, their fervor and hopes, may it not be said that even their faults illustrate the zeal they put into their li\-es. their intense hatred of crime, and the desire, com- l)letely ob.scured though it often may have been, to establish order and exalt justice in the land they soon learned to love. JOHN a. JURY. San Jose. California. THE HISTORY OF THE MINING LAWS OF CALIFORNIA "BY HON. JOHN F. DAVIS John F. Davis _!o 'j<3 tijo uJib uJSb cfe iJlSb {jljb -) Pine Grove mining regulations. (Ross Browne's Mineral Resources of the United States, 1868, page 73.) EL DORADO COUNTY— Grizzly Flat mining district, February 4, 1852; amended February 26, 1853; none of the books containing records made under the first laws are in exist- ence ; amended and name changed to Mount Pleasant mining district. French Town mining district, November 12, 1854; amended January 3, 1858; amended April 6, 1859; amended March 20, 1863. Smith's Flat mining district (no date of adoption given) ; amended Febru- ary 20, 1855 ; amended February 12, 1873. Spanish Camp quartz mining district, April, 1862; name changed to Agra district, June 14, 1866. Diamond quartz mining district, February 14, 1863. Placerville mining district, March 21, 1863. El Dorado (Mud Springs) mining district, April 7, 1863. Big Canyon quartz mining district, November 11, 1865. Henry's Diggings mining district, June, 1867. Kelsey mining district, regulations adopted May 7, 1873, in conformity with the Mineral Law of Congress of May 10, 1872. Greenwood mining district (no date). No written regulations now in force. CALAVERAS COUNTY— Angels mining district, July 20, 1855 ; amended March 24, i860. Record of district mining locations burned in 1855. Murphy's mining district, October 26, 1857. Lower Calaveritas mining district, November 7, 1857 ; amended June 28, 1858; amended April 4, 1863. San Andreas mining district, March, 1866; amended Article XVI (no date). Pilot Hill placer regulations. (Ross Browne's Mineral Resources of the West, 1867, page 241.) Copper Canyon regulations, adopted August 3, i860. (Ross Browne's Min- eral Resources of the West, 1867, page 242.) PLUMAS COUNTY— Warren Hill mining district, October 22, 1853. Creed Haymond, secretary. South Placer, quartz regulations. (Ross Browne's IMineral Resources of the United States, 1868, page 108.) Canada Hill quartz regulations. (Ross Browne's Mineral Resources of the United States, 1868, page 108.) Lone Star quartz regulations. (Ross Browne's Mineral Resources of the United States, 1868, page 108.) SIERRA COUNTY— ■ Saint Louis mining district, July 6, 1856. Gibsonville mining district, January 8, 1857. Wet Ravine mining district (no date). History of the Bench and Bar of California. 295 Trigaski Flat mining district. (Yale's Mining Claims and Water Rights, page 75; Prosser vs. Parks, 18 Cal., 47.) Sierra county quartz mining district, June 6, 1859. Extends over all quartz mining claims in the county. BUTTE COUNTY— Rich Gulch quartz mining district, November 15, 1851 ; further regulations May 22, 1852. Con Cow mining district, August 28, 1880. Oregon Gulch mining district, December 29, 1855 ; placer regulations amended June 17, 1861 ; quartz regulations amended August 13, (no year speci- fied) ; both placer and quartz regulations amended February 3, 1872. Helltown and Centerville mining district, October 11, 1857; amended March 23, 1878. Cherokee Flat mining district, November 19. 1861 ; amended September 23, 1871. Forbestown mining district, June 9, 1863. Lovelock mining district, April 3, 1865 ; amended, probably after May 10, 1872. Greely Flat mining district, December 12, 1872. Live Oak Flat mining district, July 5, 1872. Megalia mining district, since May 10, 1872. Old laws of the district lost and abrogated by custom and usage of the miners. Forks of Butte mining district, June i, 1878. Inskip mining district. May 17, 1879. Bangor quartz regulations. (Ross Browne's Resources of the United States, 1868, page 162.) Thompson's Flat mining district, 1851. The books were lost in 1857. Bidwell's Bar mining district, 1850; reorganized 1863. Original regulations and records destroyed by fire, 1854; regulations of second organization also lost. YUBA COUNTY— Upper Yuba mining district, April 11, 1852. Sucker Flat mining district, January 22, 1855; adjourned meeting January 25, 1855; amended December 31, 1855; amended February 10, 1868. Ohio Flat mining district, March 8, 1856; laws adopted March 15, 1856; amended November 12, 1857. By-laws adopted May 15, 1858. Odd Fellows mining district. On account of record book containing laws having been destroyed, new regulations adopted September 24, 1864. Indiana Ranch quartz mining district, April 18, 1857 ; amended November 7, 1857; amended March 13, 1864; amended April 25, 1878. Brownsville mining district, April 7, i860; amended April 7, 1862. Empire mining district, January 22, 1863. Dobbin's Creek mining district, March 26, 1864; approved April 17, 1864. Oregon Hill mining district (no date). First recording February 17, 1864. Brown's Valley mining district, February 14, 1852; repealed and new regula- tions adopted February 14, 1853; amended July 31, 1853; amended August 8, 1853; amended January 4, 1864; amended January 2, 1865; amended January 8, 1866; amended January 7, 1867. (Ross Browne's Mineral Resources of the United States, 1868, pages 155-156; Shinn's Mining Camps, page 249). Reorganized, May 3, 1870. (Tenth Census of the United States, 1880, Vol. XIV, page 319.) TRINITY COUNTY— East Fork of North Trinity mining district, February 17, 1852. Weaver Creek mining district, June 19, 1852. Weaverville mining district, June 7, 1853. Democrat Gulch mining district, September 3. 1856. 296 History of the Bench and Bar of California. SISKIYOU COUNTY— Lower Humbug Creek mining district, April 7, 1855. Oro Fino Diggings mining district, February 6, 1856. Little Humbug Creek mining district, April 8, 1856. ALiine Little Humbug Creek mining district, October 8, 1856. Hungry Creek Diggings mining district. October 24, 1857 ; amended January 27, 1858. Empire mining district. February 15. 1864. PLACER COUNTY— Illinoistown mining district. March 21, 1863; amended Section 4 (no date). Dutch Flat mining district (no records to be found). Auburn mining district (no date). The old mining laws are lost or de- stroyed. Yankee Jim's mining district. Copies of the old mining laws are still in existence. Bath mining district (no date). The old mining laws are not to be found. Forest Hill mining district (no date). "The district is bounded on the north by Shirt-Tail canyon, etc." The mining laws have been burned. Iowa Hill mining district (no date). The mining laws have not been in use, nor has organization been kept up since about 1865. SACRAMENTO COUNTY— Folsom quartz mining district, January 22, 1857. Adopted at the house of Colonel Russ on Prospect Hill, in the town of Russville (Ashland), and "extend over all quartz mines and quartz mining property within the county of Sacra- mento." MONO COUNTY— Bodie mining district, July 10, i860; amended at the Taylor cabin, August 10, 1861 ; amended at Burnett's cabin June 7, 1862; amended at Leach and Mon- roe's cabin June 9, 1862; amended November 12, 1862; amended at the house of J. Elnathan Smith. Jr., March 4, 1864: amended at the house of Biderman and Pooler, October 24, 1864. six members present ; amended at Wand & Bar- ker's saloon, October 5, 1865, one article being adopted by a vote of five to four amended at house of E. D. Barker, March 3. 1866; amended at house of Robert Kernahan, March 4, 1867; amended at house of F. Swenson, November 13, 1867 amended in saloon of J. C. Smith, at 7 P. M., December 30, 1876. Blind Springs mining district, March 23, 1865; amended May 4, 1865 amended July 8, 1865; amended November 18, 1865; amended November 25, 1865 ; amended March 20, 1875 ; amended March 27. 1875. Homer mining district, October 9, 1879; "adopted United States mining law of March 10, 1872." CONTRA COSTA COUNTY— Marsh Creek mining district, May 27, 1865. SAN BERNARDINO COUNTY— Borax Lake mining district, April 28, 1873. Brier mining district. May 3, 1873. Cajon mining district, March 19, 1874. Upper Yreka Creek mining district (no date). Some of the provisions of these rules and regulations, outside of the general provisions already referred to, are interesting and instructive. SOME CHARACTKRISTIC PROVISIONS. In the Helltown District, in Butte County, for instance, all kinds of placer History of the Bench and Bar of California. 297 mining existed, and the rules and regulations, among other things, define and prescribe as follows : "First — Claims shall consist of four classes: (i) River claims. (2) Bar, bench or flat claims. (3) Ravine claims. (4) Hill claims. "Second — River claims shall be all that is drained, except such parts of the ground as may be claimed previous to giving notice of intention to drain such ground. "Third — Bar, bench or flat claims shall be one hundred feet, facing the river, and shall extend at right angles across such bar, bench or flat, across the supposed channel to the final raise of the bed-rock. "Fourth — Ravine claims shall extend one hundred and fiftj' feet up or down the ravine, and not exceed forty feet in width, and may be located in the center or on either side. "Fifth — Hill, deep or coyote diggings shall consist of one hundred feet to the man, running crosswise of the hill, through it, or to unlimited extent. "Sixth — Claims or river bars, benches or flats that may be worked by the water from the river or creek shall be considered as wet diggings, and ravines that are dependent on the rainy season for water shall be considered as dry diggings. "Seventh — Any one holding a claim or claims shall work the same when . workable as often as one day in each week, to have them represented by another, or forfeit his right to them unless prevented by sickness." The following taken from the regulations of Little Humbug Creek ]\Iining District, in Siskiyou County, throws a human side-light on life in the early mining camps : "Art. Vn — Resolved, That no person's claim shall be jumpable on Little Humbug while he is sick or in any other way disabled from labor, or while he is absent from his claim attending upon sick friends." The ease with which rules and regulations could be repealed or amended is illustrated in the following: "Sec. Vni — The laws may be altered or amended at any meeting by a majority present, providing there shall have been notice of such an alteration or amendment given in the notice of the meeting calling [^."—Regulations of Ohio Flat District, Yuba County. "Article XH— Any person at any time feeling aggrieved by any of the above Rules and Regulations and desirous to have said Rules and Regulations altered or amended, may call a meeting of the miners by giving at least three days' notice of such intention by placing up at least two notices on the most public places in Gibsonville." — Regulations, Gibsonville District, Sierra County. "Article XH— No amendments or alteration shall be made to these la\i's unless a meeting of the miners of this district be called by notice posted in three public places within this district, at least before such meeting takes place five days."— £/ Dorado {Mud Springs') District, El Dorado County. One of the gems in the collection is to be found among the regulations of the Mariposa District, in 185 1 : "Resolved, That we consider all rights claimed in quartz veins, subject to the debts of the claimants or owners, as absolutely as may be other property. "Resolved, . . . Tliat a copy be furnished to our Senators and Repre- sentatives in Congress. "Resolved, That for the full and faithful maintenance of these Rules anO Regulations in our county of Mariposa we sacredly pledge our honors and our lives." 29 8 History of the Bench and Bar of California. The humor of the last resolution consists not so much in the bombastic yet earnest imitation of the Declaration of Independence as in the stern sincerity of the omitted word. The only reason they did not pledge their fortunes was because they did not have any! Fortunes were what they were hunting. In some districts the penal regulations were no less explicit than those for the location, holding and working of claims : "Article XII — Any person who shall steal a mule, or other animal of draught or burden, or shall enter a tent or dwelling and steal therefrom gold-dust, money, provisions, goods, or other articles amounting in value to one hundred dollars or over, shall, on conviction thereof, be considered guilty of felony, and suffer death by hanging. "Article XIII — Should any person wilfully, maliciously and premeditatedjy take the life of another, on conviction of murder, he shall suffer death by flanging. "Article XIV — Any person convicted of stealing tools, clothing or other articles, of less value than one hundred dollars, shall be punished and disgraced by having his head and eyebrows close shaved and shall leave the encampment within twenty-four hours." — Jacksonville District, 1850, Tuolumne County. One of the most instructive records of miners' meetings is that of the meet- ing held Dec. 13, 1853, in the Weaverville District, in Trinity County: "Dr. Ware explained the object of the meeting in a few pertinent remarks. He said that McDermot told him on yesterday that unless he gave up one- half of the water in the creek aforesaid, that he, McDermot, would take a body of men and take the water by force of arms and hold the same until he and his men were whipped off the ground. His party as above mentioned have taken possession of the water, and are holding it by force of arms. In this dilemma Dr. Ware calls upon his fellow-miners to assist him in defending his rights, agreeable to the old miners' laws. They said that this w^as a serious affair, but they were willing to defend the old and established miners' laws and the right." A committee of five was appointed to investigate the nature of the grievance and examine the law on the subject, and a recess taken. The minutes then proceed : "Pursuant to adjournment meeting met at i o'clock, were called to order by the chairman, Mr. Cameron. Committee reported as follows, having thor- oughly investigated the laws and customs of the miners of Weaver : We fully concur in the opinion that Dr. Ware is fully entitled to all the water in West Weaver, except four tom-heads, which is allowed for the bed of the stream ; also that the burning of his reservoir, and the destruction of his dam and other property and the taking of his water from his race by force of arms are mali- cious acts, and should not be submitted to by those who are in favor of law and order. "On motion, the report was received and the committee discharged. "On motion, it was 'Resolved, That we assist Dr. Ware in turning the water into his race and that we sustain him to the last extremity in keeping it in the race. "On motion, the meeting then adjourned for the purpose of carrying this resolution into effect." At this interesting point the minutes end, and the reader is left to imagine what usually takes ])lace when an irresistible force meets an immovable object. As a sample of regulations concerning the locatidu of (juartz claims, that adopted for all the quartz mines in Newida County. Dec. 20. 1852, will suffice: History of the Bench and Bar of California. 299 "Article II — Each proprietor of a quartz claim shall hereafter be entitled to one hundred feet on a quartz ledge or vein ; and the discoverer shall be allowed one hundred feet additional. Each claim shall include all the dips, angles and variations of the vein." In Other counties the length of a claim was usually greater than in Nevada, but tlie dips, spurs, angles and variations always went with the ledge, and if not expressly set forth in the rules and regulations were always included in the "customs" of the district. This was also true of the use of sufficient sur- face ground for the convenient working of the claim. THE DOCTRINE OF ^CUSTOMS." This doctrine of "customs," in its technical sense, as applied to early Cali- fornia mining operations, must not he confused with the written "rules and regulations" of miners. Though very serviceable to the early miner for ob- vious reasons, its possible and actual misuse at a later day often came back to plague him. "These (customs)," says Mr. Yale, "grow up by self-creation, and are not the subjects of invention or provision. They may be superseded when once observed as obligatory, and the customs of one district may have controling force in another. They are not the ancient customs of the common law, which, to have force, must be immemorial, merely traditional, and not or- iginating within living memory. But they are the usages which grow out of the regulations by practice, are appurtenant to them, and must be regarded and enforced as an inherent part of them, as explaining, enlarging and defining them. Their force is greater because they are within living memory, and as no generation has elapsed since they have existed, are as ancient as circum- stances will conveniently admit." Their growth in a community where pen, pencil and paper were not exactly implements of mining, where everyone knew his neighbor, and where everyone knew what transpired in camp each day, was perfectly natural ; and their recognition by courts into whose presence the rules and regulations of the miners themselves came in the guise of custom, in the generic sense of the word, was equally natural. STATE EECxISEATIVE RECOGNITION. In 1851 Stephen J. Field, then a member of the Assembly from Yuba County, introduced into the legislature and had passed what is commonly known as the Practice Act, section 621 of which (since re-enacted as section 748 of the Code of Civil Procedure) was as follows: "In actions respecting mining claims, proof shall be admitted of the customs, usages or regulations established and in force at the bar or diggings embracing such claims; and such customs, uses or regulations, when not in conflict with the constitution and laws of this State, shall govern the decision of the action." This was the first statute to take notice of these customs, usages and regulations, and its enact- ment recognized and, in a sense, adopted them as the common law of mines and mining in California. The act of April 13, i860, relating to the conveyance of mining claims, 300 History of the Bench and Bar of California. also expressly recognizes the "lawful local rules, regulations or customs of the mines in the several mining districts in this State." This is the only other statutory recognition of these rules and customs in California before the federal mining law of 1866. "These usages and customs,'' said Chief Justice Sanderson, in 1864, in con- struing Section 621 of the Practice Act, in the case of Morton vs. Solambo Copper Mining Co., "were the fruit of the times, and demanded by the neces- sities of communities who, though living under common law, could find therein no clear and well-defined rules for their guidance applicable to the new condi- tions by which they were surrounded, but were forced to depend upon remote analogies of doubtful application and unsatisfactory results. Having received the sanction of the legislature, they have become as much a part of the law of the land as the common law itself, which was not adopted in a more solemn form." STATE SUPREMK COURT RECOGNITION AND CONSTRUCTION. The State courts gave full recognition to the rules, regulations and customs of miners, and a large body of our law is made up of the judicial interpretation and application of these rules and customs, a summary of the chief points of which will not be amiss. The elastic construction given to these rules and regu- lations and the sympathetic construction given to the customs and usages were in accord with the spirit of their creation, and effectively promoted justice in the Arcadian days ; but some of the principles then laid down became in later days, under other circumstances, a very Pandora's box of troubles. To ha\'e the force of law, a regulation must be in force at the time of the location. It does not, like a statute, acquire validity by the mere enactment, but from the customary obedience and acquiescence of miners following its enactment. It likewise becomes void by disuse ; this disuse, however, must be general ; it is not sufficient that the rule has been disregarded or violated by a few persons. Whether it has fallen into disuse is a question of fact, and, there- fore, must go to the jury. Where a regulation has fallen into disuse, a custom reasonable in itself and generally observed, though contrary to the regulation, may be proved. But the written rules are presumed to be in force, and proof of a contrary custom must be clear. The existence of mining regulations is a fact, and must be proved as a fact. Judicial notice will not be taken of them. Upon the person relying on them lies the burden of proving them. This is done by producing the original rules when in writing. When it is proved that the rules were adopted and recognized, they become admissible in evidence. The fact that the meeting at which they were adopted was held upon a day different from that named in the notice thereof, does not, in the absence of fraud, render them inadmissible. And an alteration in one article of the regulations after their adoption does not change the legal effect of the other articles. When the written regulations are deposited with some authorized officer, History of the Bench and Bar of California. 301 or recorded in his office, they may not he proved hy parol e\'idence. Other evidence, however, besides proof of the written record or of the acts of a miners' meeting is admissible as tending to prove the existence of a particular rule. This may be done by establishing a custom or usage in the district. The custom of recording claims in a district, while not proving absolutely the existence of a rule requiring such a record, tends to establish it. So on a sub- ject as to which the written rules, when proven, are silent, a custom prevailin_g in the district may be proved; but regulations or customs of another district are not admissible to vary such a custom or the written rules. The admissibility of mining regulations is not affected by the shortness of the time that they have been in force. The common law rule as to customs has no application on this point. A single extract from the written rules of a dis- trict may not be proved ; the whole body of rules of a district must be offered in evidence. When regulations have been proved, their construction, like that of other writings, is for the court. But where good faith is shown, a substantial com- pliance with them is sufficient. There is a distinction between the local rule made by a few miners within a district and a mining regulation enacted by the whole district, or a custom in universal force throughout the district. The former is not binding upon the locator, unless he had actual notice of its existence or assisted in its enactment. Barringer and Adams on Mines, pp. 281-190, 290. In an action for possession of a mining claim, where plaintiff relied upon a location under certain written rules adopted by the miners of the district, which contained no requirements that notices should be posted on the claims at the time of the location, defendant may prove a custom in the district re- quiring such posting of notices. No distinction is made by the statute (Practice Act, sec. 621) between the effect of a "custom" or "usage," the proof of which must rest in parol, or a "regulation,'' which may be adopted at a miners* meeting and embodied in a \\ritten local law. The custom or regulation must not only be established, but must 1)e in force. A custom reasonable in itself and generally observed will prevail as against a written mining law which has fallen into disuse. Whether the hiw is in force at any o/rr// tinie is for the jury. Harvey vs. Ryan, 42 Cal. 626. FKDERAL SUPREMIC COURT RKCOGXITION. The Supreme Court of the United States gave full recognition to the bind- ing force of the local rules, regulations, usages and customs before the sanc- tion of federal statutory enactment, and to tlio doctrine thai tlicy constitute the American common law of mines. Sparrow vs. Strong, 3 Wall. 97, decided in 1865. Jennison vs. Kirk, 98 U. S. 453. decided in 1878. 302 History of the Bench and Bar of California. KFFKCT OF UXCERTAIIsTTY OF TFNURE. The rules, regulations and customs of the miners were the work of men who were prospectors, and w'ere admirably adapted for the mining operations that called them into being. Each man and his partner or partners worked their own claim. When the early placers w^ere w'orked out, however, and die development of the mining industry demanded not so much accssi- bility to the public domain as capital for the successful exploitation of quartz mines, security of title and a declaration of federal policy with reference to the public mineral lands became paramount. The uncertain character of the tenure of the land, too, reacted upon the mining population, made their future uncertain and shifty, and prevented the home-building so essential to the settling up and development of the mining sections of the State. "Their enter- prises," says Ross Browne, "generally were undertaken for the purpose of making the most profit in a brief time. There was no proper care for a distant future ; and without such care no society is sound, no State truly prosperous. If a claim could, by hastily washing, be made to pay $io per day to the hand for three months, or $6 for three years by careful washing, the hasty washing was preferred. If a fertile valley that W'Ould have yielded a revenue of $5 per acre for century after century to a farmer could be made to yield $5 per day to a miner for one summer, its loam was washed away, and a useless and ugly bed of gravel left in its place. The flumes, the ditches, the dwellings, the roads, and the towais were constructed with almost exclusive regard to immediate w-ants. * * * The claims \vere made small, so that everybody should have a chance to get one ; but the pay-dirt was soon exhausted, and then there must 1)e a move. In such a state of affairs miners generally could nor send for their families or make elegant homes. Living alone and lacking the influences and amusements of home-life, they became wasteful and wild. Pos- sessing no title to the land, they did nothing to give it value, and were ready to abandon it at any moment. The farmers, merchants, and other fixed resi- dents of the mining counties were agitated and frightened nearly every year by the danger of migration of the miners to some distant place. One year it is Peru; another it is British Columbia, Idaho, Reese River, Pahranagat or Arizona; and it may next be Brazil, Liberia, or Central y\frica, for all we now. EXKCl'TU'K RKCOM.Mi:XI)ATlOXS FOR CONGRKSSIONAL .\CTlOX. Meanw^hile congress steadily pursued its policy of "generous inaction." The great battle of whether California should be admitted as a slave or a free state had to l)e fought out, and all things else had to wait. It took longer to admit California into the Union than to fight the Mexican War. The exec- utive branches of the government, however, never lost sight of the necessity of some definite federal legislative action. On December 4, 1849, President Taylor, in his inaugural message, after History of the Bench and Bar of California. 303 stating that he thought the establishment of a branch mint in CaHfornia would afford facilities to those engaged in mining "as well as to the government in the disposition of the mineral lands," says : "In order that the situation and character of the principal mineral deposits in California may be ascertained, I recommend that a geological and mineral- ological exploration be connected with the linear surveys, and that the mineral lands be divided into small lots suitable for mining, and be disposed of, by sale or lease, so as to give our citizens an opportunity of procuring a permanent right of property in the soil. This would seem to be as important to the success of mining as of agricultural pursuits.'' These recommendations, so simple and so just, were, however, not the burden of the official report of Mr. Ewing, the Secretary of the Interior, who had evidently had some smattering of the Spanish code of mining, and according to whom the division, disposition and management of the mines would require much detail. It was due to the nation, he claimed, that this rich deposit of mineral wealth should be made so productive, as, in time, to pay the expense of its acquisition. He advocated the expediency of the gov- ernment furnishing scientific aid and directions to the lessees and purchasers of the mines and establishing a mint in the mines, so that the gold collected could be delivered into the custody of an officer of the mint, and out of the amount so collected and deposited a percentage could be deducted, and the balance paid to the miner in coin, stamped bullion, or in drafts on the treasury, at his option. "The gold in the mine, after it is gathered, until brought into the mint, should be and remain the property of the United States." Senator Fremont, five days after the admission of California into the Union, introduced the first federal mining bill concerning the public lands of the new acquisition. The bill was a complicated one, and, in principle, contemplated the granting of permits, by agents appointed by the government, to work mines of limited and specified quantities, upon the payment of a stipulated sum. The bill passed the Senate, but failed of passage in the House. Sena- tor Felch. chairman of the committee on public lands, in the course of the debate on the Fremont l^ill, offered a substitute which championed the ])rin- ciples of free mining, but it was defeated in the Senate. Both in the permit to be obtained under the Fremont bill, and in the land to be acquired under the Felch bill, a placer was limited to thirty feet square, and a mine to two hundred and ten feet square, the lines to be cardinal points. President Taylor died in the fall of 1850, and on December 2, 1850, Presi- dent Fillmore, in his message to Congress, said : "T also beg leave to call your attention to the propriety of extending at an early day our system of land laws, with such modifications as may be necessary, over the State of California and the territories of Utah and New Mexico. The mineral lands of California will, of course, form an exception to any general system which may be adopted. Various methods of disposing of them have been suggested. I was at first 304 History of the Bench and Bar of California. inclined to favor the system of leasing, as it seemed to promise the largest revenue to the government, and to afford the best security against monopolies ; but further reflection and our experience in leasing the lead mines and selling lands upon credit, have brought my mind to the conclusion that there would be great difficulty in collecting the rents, and that the relation of debtor and creditor between the citizens and the government would be attended with many mischievous consequences. I therefore recommend that instead of retaining the mineral lands under the permanent control of the government, they be divided into small parcels and sold, under such restrictions as to quantity and time as will insure the best price and guard most effectually against combina- tions of capitalists to obtain monopolies." The first glimmer of congressional action with reference to the mineral lands in California was by the Act of March 3, 1853, "for the survey of public lands in California, the granting of pre-emption rights therein, and for other jnu'poses," directing that "none other than township lines shall be surveyed A\ here the lands are mineral or are deemed unfit for cultivation," excluding in express terms "mineral lands" from the pre-emption act of 4th September, 1 84 1, and further interdicting "any person" from obtaining "the benefits of this act by a settlement or location on mineral lands." The Secretary of the Interior, Caleb B. Smith, in his annual report for 1 86 1 (The Public Domain, page 318), called the attention of Congress to the subject in the following words : "The valuable and extensive mineral lands owned by the government in California and New Mexico have hitherto produced no revenue. All who chose to do so have been permitetd to work them without limitation. It is believed that no other government owning valuable mineral lands has ever refused to avail itself of the opportunity of deriving a revenue from the priA'i- lege of mining such lands. They are the property of the whole people, and it would be obviously just ancj proper to require those who reap the advan- tages of mining them to pay a reasonable amount as a consideration of the advantages enjoyed." The Commissioner of the General Land Office, in his annual report of 1862 (The Public Domain, page 318), after a review of the area of the precious metal 1:)earing territory and the yield from the mines, gave the following opinion : "An immense revenue may readily be obatined by subjecting the public mines either to lease under quarterly payments or quarterly tax as seniorage upon the actual product, under a well-regulated and efficient system, which would stimulate the energies of miners and capitalists by securing to such classes an undisputed interest in localities so specified, and, when the condi- tions as to payment for the usufruct are complied with, for unlimited periods, and Avhile effecting this beneficial results to them would relieve the necessities of the Republic." History of the Bench and Bar of California. 305 In 1863, the Commissioner of the General Land Office, again called atten- tion to the mineral lands (The Puhlic Domain, pages 318-319), recommending legislation for — "opening the mines and minerals of the public domain, the property of the nation, to the occupancy of all loyal citizens, subject, as far as compatible with moderate seigniorage, to existing customs and usages, conced- ing to the discoverer for a small sum a right to one mine, placer or lead (quartz), with a pre-emptive right in the same district to an additional claim, both to be held for the term of one year, for testing the value." Collectors of internal revenue were to be the collectors of the royalty. In his message of December 6, 1864, President Lincoln called the attention of Congress to the mineral lands : "As intimately connected with and promotive of this material growth of the nation, I ask the attention of Congress to the valuable information and important recommendations relating to the public lands . . . and mineral discoveries contained in the report of the Secretary of the Interior, which is herewith transmitted." The Commissioner of the General Land Office, in his report for 1865, after referring to the fact that the organization of a bureau of mining was recom- mended in his last annual report, and stating that there can be no sufficient reason for withholding these mineral lands from the market (The Public Domain, in 1883, page 319), says : "Congress has not legislated with a view' to securing an income from the product of the precious metals from the public domain. It is estimated that two or three hundred thousand able-bodied men are engaged in such mining operations on the public lands, without authority of law, wdio pay nothing to the government for the privilege, or for permanent possession of property worth, in many instances, millions to the claimants. "The existing financial condition of the nation obviously requires that all our national resources and the product of every industrial pursuit, should contribute to the payment of the public debt. The wisdom of Congress must decide whether the public interest would be better promoted by a sale in fee of these mineral lands, or by raising a revenue from their annual product." In the annual report of the Secretary of the Treasury for the year 1865, the substitution of an absolute title in fee for the indefinite possessory rights or claims under which the mines were held by ])rivate parties was earnestly recommended : "The attention of Congress is again called to the importance of early and definite action upon the subject of our mineral lands, in which subject are involved questions not only of revenue, but social questions of a most interest- ing character. Copartnership relations between the government and the miners will hardly be proposed, and a system of leasehold, (if it were within the consti- tutional authority of Congress to adopt it, and if it were consistent with the character and genius of our people,) after the lessons which have been taught 306 History of the Bench and Bar of California. of its practical results in the lead and copper districts, cannot of course be recommended. ''After giving the subject as much examination as the constant pressure of official duties would permit, the Secretary has come to the conclusion that the best policy to be pursued with regard to these lands is the one which shall substitute an absolute title in fee for the indefinite possessory rights or claims now asserted by miners. The right to obtain 'a fee simple to the soil' would invite to the mineral districts men of character and enterprise; by creating homes (which will not be found where title to property cannot be secured), it would give permanency to the settlements, and, by the stimulus which owner- ship always produces, it would result in a thorough and regular development of the mines. "A bill for the subdivision and sale of the gold and silver lands of the United States was under consideration by the last Congress, to which attention is respectfully called. If the enactment of this bill should not be deemed expedient, and no satisfactory substitute can be reported for the sale of these lands to the highest bidder, on account of the possessory claims of miners, it will then be important that the policy of extending the principle of pre- emption to the mineral districts be considered. It is not material, perhaps, how the end shall be attained, but there can be no question that it is of tlie highest importance in a financial and social point of view, that ownership of these lands, in limited quanties to each purchaser, should be within the reach of the people of the United States, who may desire to explore and develop them." FIRST FEDERAL LEGISIvATlVE RECOGNITION. No action by Congress even indirectly recognized the conditions under which the miners had taken possession of the mines until that Act of February 27, 1865, providing for a District and Circuit Court for the district of Nevada, the ninth section of which provides as follows : "No possessory action between individuals in any of the courts for the recovery of a mining title, or for damages to any such title, shall be afifecte "?? ^ "=;? 'V "-^p "^p <:;: T/je STATE SUPREME COURT The folluwing recortl is from the Cahkjniia Bhie Book, or State Roster, for 1895, and is supplemented to 1901 : The orignal constitution of Cahfornia, adopted in 1849, provided for a Supreme Court, to consist of a Chief Justice and two Associate Justices. It further provided, in Section 3. of Article VI: "The Justices of the Supreme Court shall he elected at the general election hy the ([ualified electors of the State, and shall hold their office for a term of six years from the first day of January next after the election; provided, that the legisla- ture shall, at its first meting, elect a Chief Justice and two Associate Jus- tices of the Supreme Court, hy joint vote of hoth houses, an.d so classify them that one shall go out of office every two years. After the first elec- tion the senior Justice in commission shall he the Chief Justice." The first legislature, on Fehruary 14, 1850, pas.sed an act to organize the Court. In that Act it was provided that one Justice should be elected in 1 85 1, one at each general election e\er} second year thereafter, and that the Governor should fill vacancies by commission, which should expire at the suhsecpient general election, when the wicancy should be tilled by an election for the remainder of the unexpired term. ( )n the _'8th an Act was passed authorizing the clerk of the Sui)rcme Cotul to rent a suit- able room in vSan Francisco for the March term, 1X50, proxided that the rent of such room should not exceed $[,000 per mi)nth. On March 5th the legislature fixed tlie salary of each Justice at .Sio.ooo per annmn. ( )n April 13th an .\ct was jiassed i)ro\'i(ling for certain special terms in San Francisco, and that aftc!"\\ards the sessions of the coin"t should be held at the seat of go\-ernment. In accordance with the i)rovisions of the constitution above (|uoted, the first legislature, on December 22, i8.4(). elected v^. C. Hastings Chief Justice, Henry A. Lyons first Associate Justice, and Nathaniel Bennett second Associate Justice. On February 1, 1850, the legislature passed a resolution classifying the Justices so that Hastings shoulcl go out of offiice 350 History of the Bench and Bar of California. at the end of two years from January i. 1850, Lyons at the end of four years, and Bennett at the end of six years from that date. On March 11, 1 85 1, a law was passed to have one Justice elected in 1852, and one at the general election every second year thereafter; but on April 28th, another Act was passed providing for the election of one in 1851, and one every second year thereafter. This legislature also passed a law providing that the terms of court, until January 1, 1852. should be held in San Francisco, and after that at the seat of government. On May 24th, an Act was passed pro- viding that thereafter the sessions of the court should be held at the capital of the State. The salaries of the Justices were reduced to $6,000 each on April 21, 1856. justice Hastings served out his term, and at the general election held September 3, 1851, Solomon Heydenfeldt w^as elected to succeed him. Hey- denfeldt took office January i, 1852, and resigned January 6, 1857. Gov- ernor Johnson, on the 13th, appointed Peter H. Burnett to fill the vacancy, and Burnett resigned October 12, 1857. On the 13th Governor Johnson appointed Stephen J. Field to serve out the unexpired term. Field had been elected on September 2, 1857, for the full term. This term began on January i, 1858. In 1863. President Lincoln appointed Field one of the Associate Justices of the Supreme Court of the United States, and on May 20th of that year he resigned his seat on the California bench. The next Governor, Stanford, appointed E. B. Crocker to fill the vacancy, and he served until the taking effect of the constitutional amendments of 1862. Justice Lyons resigned March 31, 1852, and on April 2d, Governor Bigler appointed Alexander Anderson to fill the vacancy, and he qualified on the 6th. At the general election on November 2, 1852, Alexander Wells was elected for this short term, and he took his seat on the bench January 3, 1853. Wells was re-elected for the full term, September 7, 1853, and he assumed ofifice by virtue of that election January 4, 1854. He died October 31, 1854, and on November 24th, Governor Bigler appointed Charles H. Bryan to fill the vacancy. At the general election held September 5, 1855, David S. Terry was elected by the people, and he assumed office on November 15th. Terry resigned September 12, 1859, to participate in the duel with Senator David C. Broderick. On the 20th Governor Weller appointed W. W. Cope to fill the Terry vacancy. Cope had been elected for the full term at the election held on September 7, 1859, and he took office under that election on January 2d following, and served until the remodeling of the court in r8f)4. Justice Bennett resigned October 3. 1851, and on the nth Governor McDougall appointed Hugh C. Murray to fill the vacancy. On November 2. 1852, Murray was elected to succeed himself, and he took office by virtue of that election on January 3d following. Murray was elected for the full term on Septeni])er 5. 1855, ^^"t he died September 18, 1857, and Governor History of the Bench and Bar of California. 351 Johnson appointed Peter H. Burnett on October 12th to succeed him. At the general election on September t. 1858, Joseph G. Baldwin was elected to fill the remainder of the vacanc)-, and he assumed office on October 2, 1858. On September 4, 1861, Edward Norton was elected for the full term. Norton took office on January 6th following-, and served until the change was effected by the adoption of the constitutional amendments of 1862. In 1862 the State constitution was amended to constitute the Supreme Court of a Chief Justice and four Associate Justices, and it provided that the Justices should be elected at special elections, to be provided for by law, at which elections only judicial and school officers should be elected. It provided further : "The first election for Justices of the Supreme Court shall be held in the year 1863. The Justices shall hold their offices for the term of ten years from the first day of January next after their election, except those elected at the first election, who, at their first meeting, shall so clasify them- selves, by lot, that one Justice shall go out of office every two years. Tlie Justice having the shortest term to serve shall be Chief Justice." On March 21, 1863, the legislature passed an Act providing that there should be held on the third Wednesday in October, 1863, and every two years thereafter, an election, to be called "Special Judicial Election," at which should be elected the Supreme Justices and other judicial and school officers. On April 20th an Act was passed to provide for the organization of the new court, and it was enacted that when a vacancy should occur, the Governor should fill it by the appointment of a person, who should hold until tlie next judicial election, and the Justice elected by the people at such election should hold office for the balance of the unexpired term. It was also provided that the terms of court should be held at the seat of government. The salaries of the Justices were fixed at $6,000 each. The salaries have not since been changed. Under this constitutional provision, on October 21, 1863, Oscar L. Shafter, Lorenzo Sawyer, Silas W. Sanderson, John Currey, and A. L. Rhodes were elected Supreme Court Justices. Tlie new court organized January 2, 1864, and in accordance with law the Judges drew lots to determine the tenure of their official terms, with the following result : Shafter drew for ten years, Rhodes for eight. Sawyer for six, Currey for four, and Sanderson for two. Justice Sanderson was re-elected to succeed himself on October 18, 1865. Sanderson resigned January 4. 1870. On the 8th Governor Haight appointed Jackson Temple to fill the vacancy, and he assumed the duties of the office on the loth. On Oqtober 18, 1871, Addison C. Niles was elected Justice to fill the vacancy. He took office January ist following, and remained on the bench until the new constitution took effect. Royal T. Sprague was elected to succeed Currey on October 16, 1867, and took office January 6, 1868, but died February 24, 1872, and on the 4th of March Governor Booth appointed Isaac S. Belcher to fill the vacancy. On October 15, 1873, Elisha W. McKinstry was elected to the office. McKin- 352 History of the Bench and Bar of California. slry took oftice January u, 1874. and served until the reorganization of the court under the new constitution. On October 20. 1869, W'ilhani T. \\allace was elected to succeed Sawyer. Wallace assumed office on January 10. 1870. and served until the new con- stitution effected a change in the ccmrt. On October 18. 1871, Rhodes was elected to succeed himself, and he served until the new court came in. Justice Shafter resigned December 11. 1867. and (governor Haight appointed J. B. Crockett to succeed him. On October 20, 1869, Crockett was elected to succeed himself, and he served until the change was effected by the new constitution. In 1879 the people adopted the new constitution, which constituted the Supreme Court of a Chief Justice and six Associate Justices, and it provided : "The Chief Justice and the Associate Justices shall be elected by the qualified electors of the State-at-large. at the general State elections, at the time and places at which State officers are elected, and the term of office shall be twelve years from and after the first Monday after the first day of January the next succeeding their election: jirovided.. that the six Associate Justices elected at the first election shall, at their first meeting, so classify themselves, by lot, that two of them, shall go out of office at the end of four years, two of them at the end of eight years, and two of them at the end of twelve years, and an entry of such classification shall be made in the minutes of the court in bank, signed by them, and a duplicate thereof shall be filed in the office of the Secretary of State. If a \'acancy occur in the office of a Justice, the Go\ernor shall appoint a person to hold the office until the election and quali- fication of a Justice to fill the vacancy, wdiich election shall take place at the next succeeding general election, and the Justice so elected shall hold the office for the remainder of the unexpired term. The first election of the Justices sh.all be at the first general election after the adoption and ratification of this constitution." At the election held on September 3. 1879, Robert F. Morrison was elected Chief Justice. At the same time Samuel Bell McKee, Er.skine M. Ross. John R. Sharpstein, J. D. Thornton. K. W. McKinstry, and M. H. Myrick were elected Associate Justices. The new court organized January 5, 1880. and on the classification by lot. Ross and Sharpstein drew for four years, McKee and Myrick for eight years, and Thornton and McKinstry for twelve years. On November 7, 1882. Sharpstein and Ross were elected to succeed them- selves. They assumed office, by virtue of this election. January i. 1883. as by the 'provisions of Section 10 of the schedule to the new constitution, the Term of all officers elected at the first election under it Avere made one A'ear shorter than the terms fixed by law or by the constitution. Judge Ross sent his resignation to the Governor on October i, 1886. and at the election on Xovcmber 2, following. Jackson Teiuple was chosen to succeed him. History of the Bench and Bar of California. 353 At the same election Van R. Patterson and Thomas B. McFarland were elected Associate Justices to succeed McKee and Myrick. Chief Justice Morrison died March 2, 1887, and Niles Searls was appointed by Governor Bartlett to serve until the next election, November 6, 1888. At that election W. H. Beatty was chosen Chief Justice to fill out the unexpired lerm. Judge McKinstry resigned July 30, 1888, to take effect October i, 1888, and on September 22d, of that year, Governor Waterman appointed John D. Works to fill the vacancy, and at the election held on November 6, 1888, Works was chosen to succeed himself. On June 25, 1889, Temple resigned, and Governor ^^'aterman appointed C. N. Fox, of Alameda, to fill the unexpired term. At the general election in 1890, W. H. Beatty was elected for the full term of tw'elve years to succeed himself, and Ralph C. Harrison and C. H. Garoutte, Associate Justices for twelve years, to succeed John D. Works and John D. Thornton, and J. J. DeHaven for the short term of four years, to succeed Charles N. Fox. Governor Markham. February 2, 1893, appointed W. F. Fitzgerald, of Los Angeles, to fill the unexpired term of Sharpstein, deceased. On April 28, 1894, William C. Van Fleet w^as appointed by Governor Markham to fill the vacancy caused by the resignation of Van R. Paterson, until the next general election. At the general election in 1894, F. W. Henshaw and Jackson Temple were elected Associate Justices for tw^elve years to succeed J. J. DeHaven and Wi. F. Fitzgerald, and William C. Van Fleet for the short term of four years to succeed Van R. Paterson, resigned. At the general election in November, 1898, Thomas B. McFarland and Walter Van Dyke Avere elected Associate Justices, to succeed the first named and William C. Van Fleet, and entered on their terms of twelve years each, in January, 1899. The following is a list of persons who have served as Chief Justices, together with the terms of service : S. C. Hastings, from December 22, 1849, t*^ January i, 1852. Henry A. Lyons, January i, 1852, to March 31, 1852. Hugh C. Murray, March 31, 1852, to September 18, 1857. David S. Terry, September 18, 1857, to September 12, 1859. Stephen J. Field, September 12, 1859, to May 20, 1863. W. W. Cope, May 20, 1863, to January 2, 1864. Silas W. Sanderson, January 2, 1864, to January t, 1866. John Currey, January i, 1866, to January i, 1868. Lorenzo Sawyer, January i, 1868, to January i, 1870. A. L. Rhodes. January i, 1870, to January i, 1872. Royal T. Sprague, January i, 1872, to February 24, 1872. William T. Wallace, February 24, 1872, to January i, 1880. 354 History of the Bench and Bar of California. Robert F. Morrison, January i, 1880, to March 2, 1887. Niles Searls, appointed by Governor Bartlett, April 19, 1887. William H. Beatty, elected by the people November 6, 1888: re-elected November 4, 1890. Dates and places of death of Supreme Court Justices : H. A. Lyons died at San Francisco, July 27, 1872. N. Bennett at San Francisco, April 20, 1886. H. C. Murray at Sacramento, September 18, 1857. A. Wells at San Jose, October 31, 1854. C. H. Bryan at Carson City, Nevada, May 14, 1887. J. G. Baldwin at San Francisco, September 29. 1864. E. Norton at London, May 12, 1872. E. B. Crocker at Sacramento, June 24, 1875. O. L. Shafter at Florence, Italy, January 22, 1873. S. W. Sanderson at San Francisco, June 24, 1886. R. T. Sprague at Sacramento, February 24, 1872. J. B. Crockett at Fruitvale, January 15, 1884. R. F. Morrison at San Francisco, March 2, 1887. S. B. McKee at Oakland, March 2, 1887. D. S. Terry was shot by David Neagle at Lathrop, August 14, 1889. S. Heydenfeldt at San Francisco, September 15, 1890. A. C. Niles at San Francisco, January 17, 1890. J. R. Sharpstein at San Francisco, December 28, 1892. S. C. Hastings at San Francisco, February 19, 1893. P. H. Burnett at San Francisco, May 17, 1895. Lorenzo Sawyer at San Francisco, September 7, 1891. Isaac S. Belcher at San Francisco, 1898. :: ATTORNEY GENERALS OF CALIFORNIA William F, Fitzgerald For Sketfh see Page twx •^0(43 ^g(9 '^ f^.ijfe tm t^o (^^ HISTORY of the BENCH and BAR of CALIFORNIA ^9 oja Cip OJG ^ ep t^Jij (f^. ep ejji) ATTORNEY GENERALS of CALIFORNIA E. J. C. Kewan was elected by the legislature on December 22, 1849, ^^^ took office the same day. He resigned August 13, 1850. The State was not admitted until a month later. He died at Los Angeles, November 25, 1879. James A. McDougall, elected October 7, 1850; resigned December 30, 1 85 1. He died at Albany, New York, September 3, 1867. Alexander Wells, appointed by Governor McDougal, January 6, 1852. He died at San Jose, October 31, 1854. S. C. Hastings, elected September 3, 1851; took office January 5, 1852. Died in San Francisco, February 19, 1893. John R. McConnell, elected September 7, 1853; took office January 2, 1854. He died at Denver, August 18, 1879. William M. Stewart, appointed by Governor Bigler June 7, 1854, to fill the office during the temporary absence of McConnell from the State by legislative consent. William T. Wallace, elected September 5, 1855; took office January 7, 1856. Thomas H. Williams, elected September 2, 1857; took office January 4, 1858; re-elected September 7, 1859; took office January 2, i860. He died at San Francisco, February 28, 1886. Frank M. Pixley, elected September 4, 1861 ; took office January 6, 1862. Died at San Francisco, August, 1895. J. G. McCullough, elected September. 1863; took office December 5, 1863. Jo Hamilton, elected September 4, 1867; took offiice December 7, 1867. John Lord Love, elected September 6, 1871 ; took office December 2, 1871. Died at San Francisco, on July 5, 1899. Jo Hamilton, elected Septeml)er i, 1875; took office December 4, 1875. Augustus L. Hart, elected September 3, 1879; took office January 5, 1880. 358 History of the Bench and Bar of California. E. C. Marshall, elected November y, 1882; took office January i, 1883. Died at San Francisco, July 9, 1893. G. A. Johnson, elected November 2, 1886; took office January 3, 1887. Died at San Francisco, September 20, 1894. William H. H. Hart, elected November 4, 1890; took office January 5, 1891. William F. Fitzgerald, elected November 6, 1894; took office January 7, 1895. Tirey L. Ford, elected November, 1898; took office January, 1899. OUR FIRST WATER RIGHTS DECISION BY 7HE EDITOR Jib dl(b c^ oSb tjja efe t^9 tilSb silis c^ HISTORY of the BENCH 5 ncf BAR of CALIFORNIA ' f ^jT- "^ OUR FIRST WATER RIGHTS DECISION Mr. D. G. Reid, of the leading law firm of Reid & Bartlett, having offices at Redding, Shasta county, and Weaverville, Trinity county, writing from the first place named, brings to our notice the case of Davis vs. Ware, decided by Hon. Joseph W. McCorkle, Judge of the Ninth Judicial District Court, for Trinity county, April 21st, 1854. Mr. Reid says: 'T have looked up the Supreme Court decisions and I find that the first case in the California Reports on this question is reported in the fifth volume at page 140, — the case of Mathew W. Irwin vs. Robert Phillips, et al., decided by the Supreme Court in January, 1855. I fi"*^^ that the decision of the lower Court, Tenth Judicial District, for Nevada County, was rendered and decided November 28, 1854. You can see from the above that the enclosed decision was rendered more than seven months prior to the case of Irwin vs. Phillips, and I am satisfied is the first decision in the State which goes outside of the Common Law doctrine." Judge McCorkle's decision is as follows : "This action is brought for damages. The complaint states that plaintiffs have constructed a race or canal for the puri)ose of conducting the waters of West Weaver Creek to certain mining claims which they were in possession of and working, known as Davis & Co.'s race, and that defendant had by con- structing a dam, diverted the waters of West Weaver Creek to other diggings, contrary to the usages and customs of the miners on West Weaver. "The answer set out that the dam by which the waters of West Weaver were diverted was constructed in the year 1851, for the purpo.se of conducting the waters of said creek to the mines in the \icinity of Weaverville; that the race of defendants was commenced in the year 1850 and completed in the spring of 1851, and was in fact completed and in operation for the purpose of mining one year before the plaintiff began to construct the race known as Davis & Co.'s, far below that of defendant; that the waters of W'est Weaver so diverted w-as for mining purposes, etc., according to the usages and regula- tions of miners in the county of Trinity, etc. ; that plaintiffs according to the 362 History of the Bench and Bar of California. regulations of the miners, were only entitled to four "Tom Heads" of water, for the purpose of working the bed of West Weaver Creek as ascertained and settled by a meeting of miners held at Weaverville on the 7th of June, 1853, regularly called and attended by the miners of West Weaver Creek, and at which the following regulations were made : 'Resolved, that the aforesaid race companies (meaning those in the vicinity of Weaverville), be entitled according to their priority of right to so much of the water of West Weaver Creek as their respective races convey: provided always, that sufficient water be allowed to run in the natural channel of said creek for the benefit of miners at present working or who may hereafter work the bed of said creek, and that four "Tom Heads" shall be sufficient for that purpose;" that at the same meet- ing a further regulation was made to the effect that any individual or company who may construct a race for the conveyance of the water of any gulch or creek in this district shall be protected in the right to said water, provided it is used for mining purposes. It is also stated in the answer that defendants, in compliance with the above regulations, permitted four Tom Heads of water to run in the natural channel of West Weaver Creek, for the purpose of sup- plying the miners thereof with water, etc. To the answer a demurrer is filed admitting all the facts set out as true, and claiming that they do not constitute a legal or sufficient defense. "The question and rights involved in this case are of great importance to the mining population of this as well as the other mining counties of this State, and upon their equitable and fair adjustment depends not only the quiet and peace of the community, but to a great extent the prosperity and success of the miners and the full development of the vast mineral resources of the county. "This court cannot but perceive the inapplicability of the doctrine of the common law to the state of things presented. West Weaver Creek flows through and drains lands that are strictly and exclusively mineral, and the only business and occupation of the mass of people in its vicinity is mining for gold. Water is an indispensable and necessary element for mining opera- tions, and the application of the doctrines of the common law in regard to water courses, as established and applied to agricultural and manufacturing counties, to our mineral regions, would not only not tend to foster and pro- tect the mining interest, but absolutely retard and in course of time destroy it. The beds of most of the creeks and streams in the mineral regions have been worked out, while extensive gold fields lie unoccupied and untouched yet, for want of water, but which by the construction of canals for the conducting of water on and through them, will yield good wages to the miners for 3^ears to come, and furnish thousands with constant employment, who otherwise would be compelled to lay idle, except during the rainy season. The statutes of the State have, however, to some extent, relieved this court from the responsi- bility of making a decision in the case, which, while it would protect the History of the Bench and Bar of California. 363 interests of the great mass of the miners of this vicinity, would at the same time be in direct conflict with the doctrines of the common law. The "usages and regulations" of the miners are legalized by the law-making power and adopted, and made as much a part of the law of the State, when not in conflict with the constitution and statutes, as the common law itself, and should be enforced by the courts as such. With this view of the state of the case and the law, the (juestion involved can easily be determined. The 'regulations' of the miners in the district and vicinity, as set out in the defendant's answer, give to the defendants the right to use all the water of West Weaver Creek, except four 'Tom Heads,' for mining purposes, conducted through his race — four 'Tom Heads' being deemed a sufficient quantity for working the bed of the creek below the dam of the defendant. In all respects, it is admitted, the defendant has complied with the 'regulations' as made by the miners at a regu- larly called meeting for the purpose, which the plaintiffs themselves attended. The decision of the court therefore is that the demurrer be overruled and judg- ment be rendered for the defendant." Judge McCorkle had been a member of the assembly from Sutter county in 1 85 1. A year prior, at the first legislative session, he was defeated for Judge of the Eighth District by Wm. R. Turner. Had the legislature elected him, a lively chapter in Judge Field's career (his trouble with Turner) would be unwritten. It was Judge Field who introduced McCorkle to the assembly when he took his seat in that body. McCorkle was one of those who voted to impeach Judge Levi Parsons, of San Francisco. In September, 1851, Mc- Corkle was elected to the lower house of congress, and served to March 4, 1853. In the following fall he was chosen District Judge of the Ninth Dis- trict, embracing Butte, Trinity, and other counties. When the Democratic, party divided in 1859, he acted with the Douglas wing. We met him then for the first time, in State convention at Sacramento. McCorkle, before he went on the liench, fought a duel with United States Senator William M. Gwin. The parties were in "dead earnest," but were not "dead shots.'' They fought with rifles, with their backs turned at first, and wheeling as the word was given and firing at once. The following paper, signed by all the seconds, shows what occurred : "After an" exchange of three ineffectual shots between the Hon. William M. Gwin and Hon. J. W. McCorkle, the friends of the respective parties, having discovered that their principals were fighting under a misapprehension of facts, mutually explained to their respective principals in what the mis- apprehension consisted, whereupon Dr. Gwin promptly denied the cause of provocation referred to in Mr. McCorkle's letter of the 29th of May, and Mr. McCorkle withdrew his offensive language uttered on the race-course, and expressed regret at having used it. (Signed) S. W. Inge, F. Stuart, E. C. Marshall, E. C. Fitzhugh, Geo. P. Johnston, A. P. Crittenden. June i, I8.S.3-" Judge McCorkle died in Maryland, March 30, 1884. THB EDITOR. THE REMARKABLE CONTEMPT CASE OF PHILOSOPHER PICKETT j^ ^ ^ ^ BY THE EDITOR tijo t^ t^ cja tilfb t^ ^ aia (^ ti?? HISTORY of the BENCH and BAR of CALIFORNIA B^^flj^e^e^e^f^e^e^ ef; The REMARKABLE CONTEMPT CASE of PHILOSOPHER PICKETT Charles E. Pickett was in some respects a remarkable man. Of a tempera- ment not favorable to friendship, he yet made very few real enemies. He was a little above the average height and weight, with nothing about him to attract special attention, but few men have ever been so well known over the whole coast. "There goes Philosopher Pickett!" Our attention was in this way directed to the man for the first time as he walked by us in Sacramento in 1855, with a somewhat peculiar gait and apparently in serious meditation ; for al- though it may not be said that he had a thoughtful face, he was (in his way) a great thinker. With what is termed a "fair" education, and being a con- stant talker and writer, his expression was commonplace, although not faulty; and as to "philosophy," he was never accredited with having any of the gen- uine article. He always evinced a deep interest in public men and measures. These were the theme of his tongue and pen. His habitat was in the centers of population. He always carried an unfailing supply of fun, in the form of anecdotes and reminiscences, and this tended to make him companionable in spite of his abrupt dogmatism. A certain young man of San Francisco, before his admission to the bar, in speaking to us of a vagrant, was unable to recall the exact statutory words, "having no visible means of support," and said that the man had an "invisible means of support." Pickett had "an invisible means of support." The affairs and fate of political parties, states and empires were of pressing concern to him, and he always felt himself competent to discourse of them. He could not be accused of idleness. Plis friends (or critics) who had dubbed him "phil- osopher," called his papers "pronunciamentos." For some of these, it may be for most of them in the earliest days, he got some pay from newspapers, but adversity soon came, and abided with him. He kept up appearances quite creditably. We were in the sanctum of the San Francisco Examiner in 1870, sitting close to Colonel B. F. Washington, the editor-in-chief, and Geo. P. Johnston, the exchange editor and part owner, when Pickett entered, holding one of his long manuscripts in his hand. (Washington and Johnston were in- teresting men. For the duels in which they took part, see other pages of this 368 History of the BencJi and Bar of California. History.) Laying his paper on the editor's tahle, Pickett said: "I haven't put any heading on this, Washington ; please read it, and give it a proper caption." Johnston, always instantaneous, said, "Washington, call it 'The Ravings of a Maniac' " Pickett went right out, saying nothing, hut showing he was hurt. It was long l^efore this, in June, 1858, that Pickett wrote a dissertation on "The Birth, Character and Mission of Christ." He designed it for a lec- ture, and to save the expense of a hall he waited on the pastors and trustees of the principal churches, and asked for the use of their auditoriums, but all turned him away. He was living at San Francisco at the presidential election of i860, and voted for Lincoln, writing on his ballot (there was no law against it then) that he knew there w^as to be war between the North and the Soutli. and he wanted to see it come quick and be over. He thought Lincoln's election would precipitate it. Pickett was born in Virginia in 1820. He turned his eyes to this far-off shore nearly a decade before the first gold seekers rushed in upon Marshall's great find. He went overland to Oregon, with a company composed prin- cipally of farmers, and took two years to make the trip. In their new home, every man was required to build a house, or help the community by other hard work, — if in no other way, than by hunting and bringing in game. Pickett would neither build, hunt, nor fish. His industry took the form of writing ■'pronunciamentos" in an almost unbroken wilderness. The "philosophy" which he submitted for the government of the settlement was inscribed (in the dearth of paper) on shingles, which product of honest toil he so smoothed as to make them take the ink, and these he tacked to trees and posts in the most frequent places. His stay in Oregon was brief. He had been in the Rocky Mountains in 1842. In 1846 he was on the banks of the Klamath river, making slow progress towards Central California. Not long after- wards he located at Sutter's Fort, within whose walls he engaged in trading. Here he killed a man in a quarrel and, being tried for the offense, was ac- quitted. This historic structure, now rehaljilitated by the munihcence of Colonel Charles F. Crocker, shows Pickett's old sign indicating his business as a dealer in miners' supplies, along with those of Samuel Brannan, Samuel J. Hensley. Pierson B. Reading, Jacob R. Snyder, and other remembered pioneers. A few years were passed here, and our errant philosopher took up his residence in San Francisco. The directory of that city in 1856 had something to say of all men in any way notable, and this is what it said of Pickett: "Boards at Rassett House. An early emigrant to Oregon, and hastened to California at the commencement of the Mexican War, and was more or less a participator in the stirring events of that period." In the metropolis. Pickett, who was never married, called himself a jour- History of the Bench and Bar of California. 369 nalist usually, but he was proud of his pseudonym, and when the first registra- tion law took effect, by wdiich voters were required to give, among other things, their occupation, he himself enrolled as a "philosopher." He was never a lawyer, but usually he made his headcjuarters at the office of some lawyer friend; for instance, in the late sixties his office was with Williams & Thornton, and in the late seventies, it was with John B. Harmon. Such was the man who was the central figure in the greatest contempt case known to our State courts. In 1 8/ 1, the Supreme Court referred the question of their terms of office to Joseph P. Hoge, Samuel M. Wilson, and Samuel H. Dwindle; the first two named being at the head of the bar. and the last being at the time District Judge of the Fifteenth District. They all held that there was no such thing as a short term so far as an election by the people was concerned ; that, wdien the Governor appointed a person to fill a vacancy such person held until the next election, but that whenever there was an election by the people the person elected took the office for a full term. Neither the profession nor the public ever accepted this view. Pickett, histead of treating it as a philosopher, brooded over it as a great wrong. The constitution said : "The justice having the shortest term to serve shall be the chief justice." If all elected justices held for full terms, it would occur now and then that there w^ould not be any justice w'hose term was shortest ; but there would be two justices with terms equally "short." The constitution as amended in 1862, was substantially the same as before, so far as it related to this question. The custom in vogue prior to 1862 of electing Supreme Judges for long and short terms, was sanctioned by the court itself. There was always one justice whose term was shorter than that of any other. At the judicial election of October, 1873, when Hon. E. W. McKinstry was elected to the Supreme Bench, as an independent, Hon. Samuel B. McKee \\as the Democratic candidate, and no other than Hon. Samuel H. Dwindle himself ran on the Repul)lican ticket for the long term. The Republicans nom- inated for both a long and a short term. Judge Brunson being the short term nominee. In accepting a place on his party ticket, Judge Dwinelle tacitly revoked his part in the written opinion of two years before. This was nearly a year before Pickett's transgression. Six years later the second and present constitution of the State put the question to rest in these w^ords : "If vacancy occur in the office of a justice, the Governor shall appoint a person to hold the office until the election and qualification of a justice to fill the \acancy, which election shall take place at the next succeeding general election, and the justice so elected shall hold the office for the remainder of the unexpired term." When the court referred the question, that tribunal was composed of A. L. Rhodes, Royal T. Sprague, Addison C. Nelson, William T. Wallace, and 370 History of the Bench and Bar of California. Joseph B. Crockett. The opinion of Messrs. Hoge, Wilson and Dwinelle affected the terms of Niles. Repnljhcan. and Crockett, Democrat. By all pre- vious rule, Judee Niles' term would end on January i, 1876. He had been elected to succeed Sanderson, who had resigned six years before at the end of his term. Judge Crockett's term would expire on January i, 1874. He had first been appointed in place of Shafter, who resigned December 11, 1867, leav- ing six years unserved. Mr. Crockett served until the next election ( 1869) when he was chosen by the people to serve out the remainder of Shafter's term. But both of these justices, under the opinion accepted by the court, continued on the bench until the opening of the year 1880. Not to follow Pickett through all the suffering this situation caused him, but to hasten to the issue we recall that he remarked to his friend, ex-Chief Justice John Currey, in the summer of 1874, that he, Pickett, intended to do what will be shown below. Judge Currey said to him, "If you do, you will get into jail or a lunatic asylum." In the same year, the legislature being in session, Pickett managed to secure the reading of a petition (his own) in the assembly, asking for the im- peachment of the Supreme Judges. The document was ruled out by the speaker, j\I. M. Estee, on ]\Iarch 16, 1874. (Journal of Twentieth Session, page 923). He also secured the introduction into that body of a resolution instructing the judiciary committee to ascertain and report whether or not Justice Crockett was the usurper of a seat on the Supreme Bench. No action was had upon it. We will now give the famous "contempt" of Pickett, as it was observed by a reporter of the San Francisco Bulletin, on August 6, 1874. He described it under the caption of "A Scene in the Supreme Court," as follows : "At the opening of the Supreme Court of the State of California, about 1 1 o'clock this morning, an event— unusual for tribunals of that high character — transpired, in which one Charles E. Pickett, well known about the streets, figured disgracefully. A few minutes prior to the hour mentioned above, Pickett took his position at the bar and among the lawyers, having some time previously announced his intention of appearing in the Supreme Court this morning and making a motion before that learned body. The Justices of the Supreme Court are in the habit of entering the court-room at 11 o'clock a. m., and on this occasion the only rule observed is for the court, before taking their seats, to stand erect, the bar at the same time rising to their feet in front of the bench. The bailiff then announces : "The Supreme Court of the State oi California," and immediately the members of the bar incline the head in a respectful bow. The court return the salute and afterward take their seats, and the members of the bar follow the example. There are two doors opening into the court-room from the law library, by which the Justices enter. "When the doors w^ere opened this morning. Chief Justice Wallace entered hrst. closely followed by Mr. Justice Crockett and Mr. Justice Niles, by the door on the right, while Mr. Justice McKinstry entered by the door on the History of the Bench and Bar of California. 371 left. While the Justices were in the act of arranging themselves, previous to being seated, and just at the moment that the bailiff announced "the Supreme Court of the Sate of California,'' Pickett suddenly advanced from his position among the lawyers, and, stepping quickly in front of Mr. Justice Crockett, deliberately took the seat assigned to that Justice. Chief Justice Wallace im- mediately called out, "Where is the bailiff of this court? Who is this man that intrudes himself?" The bailiff, failing to appear, the Chief Justice put his hand on Pickett, as though to give him an earnest hint to vacate the seat, when the latter clenched the Judge, threw his left arm around him, and showed a determination to have a fight. The greatest confusion ensued. The situation was novel beyond conception, and equally aggravating to all save the author of the mischief. But Grant Taggart, the clerk of the court, and the chief, sprang forward and seized Pickett. The Chief Justice then ordered Pickett to be put into the street, and at the same time said, "This man is guilty of con- tempt of court. We fine him $500 and order him to prison for five days and until the fine is paid." Pickett struggled violently to release himself from the clerk and crier, but was unable to secure the desired end. He was promptly ejected from the court-room and the door was closed." As Pickett was being thrust through the door into the corridor, he turned and cried out, "I defy you," and the Chief Justice said, "We fine you $500 more." The following is the order of the court entered on the same day: In the Supreme Court of the State of California, Thursday, August 6, 1874. Court met at eleven o'clock, pursuant to adjournment. Present, Hon. W. T. Wallace. C. J.; J. B. Crockett, J.; A. C. Niles, J.; E. W. McKinstry, J.; Grant I. Taggart, Clerk; Thomas F. O'Connor, Bailifif. The court having met pursuant to adjournment, the Judges proceeded to their respective seats upon the bench. Chas. E. Pickett, being then present in the court-room, suddenly obtruded himself upon the bench and into the chair of Crockett, J., and announced that he had as good a right upon the bench of said Court as the said Crockett had ; and the said Pickett thereupon being com- manded by the Chief Justice to leave the said chair, peremptorily refused to do so, and was subsequently removed therefrom by actual force. Whereupon it is now here by the Court adjudged that the said Chas. E. Pickett is guilty of a contempt of this Court, committed in its immediate presence, by unlawfully interfering with its proceedings in manner aforesaid, and by disorderly, contemptuous and insolent behavior towards the Court and the Judges thereof then present as aforesaid, (and) it is now here ordered and adjudged by the Court, that for such, his contempt aforesaid, he, the said Chas. K. Pickett, shall suffer imprisonment by close confinement m the common jail of the city and county of San Francisco for the period of five days, and further, that he pay a fine of five hundred dollars, and that if the said fine be not paid at the expiration of said five days' imprisonment then it is further ordered, adjudged and decreed that the said Chas. E. Pickett be imprisoned and kept in close confinement in said common jail until the said fine be paid, pro- vided that such imprisonment for the non-payment of the said fine may extend to, but shall not exceed, one day for every two dollars of the fine due from him, the said Chas. E. Pickett, and that a warrant and writ of execution do forthwith issue, directed to the sheriflf of the city and county of San Francisco, commanding him to carry the aforesaid judgment into efTect. 872 History of tlie Bench and Bar of California. And the said Chas. E. Pickett being still present, and having been adjudged guilty of the contempt of the Court aforesaid, in manner and form aforesaid, and the judgment of the Court in that behalf having been then and there an- nounced in open Court, he, the said Chas. E. Pickett, then and there insolently and contemptuously used and addressed to the Court then and there being in open session, the following language in reference to the said judgment, to-vvit, "I defy your authority," Then followed a second like sentence for five days' imprisonment and a like fine, concluding with the words: "The imprisonment for the contempt last aforesaid to commence at the expiration of the imprisonment for the con- tempt adjudged firstly aforesaid." When taken to the county jail, Pickett asked to be given a "room" by himself. He was told that he must take his chances like others. After a while he was allowed separate quarters and the privilege of promenading along the passages and sitting in the office. He was in prison fourteen months. There was much popular sympathy for him. Lawyers found in his case an inter- esting and prolific subject of discussion. He had been in jail over six months, when ex-Supreme Judge Silas W. Sanderson remarked to a former brother justice of that bench, "They ought to let him out ; the people are becoming restive about his case." Hon. James D. Thornton, afterwards a Supreme Judge, made intercession for him without avail. He was finally released on motion of James A. Johnson. Mr. Johnson, since deceased, was a lawyer of advanced age, and a veteran Democratic politician. Formerly living at Downieville, he represented his county in the assembly, and was in the lower house of congress for two terms. After removing to San Francisco, he was elected Lieutenant Governor, serving from December, 1875, to January, 1880. He owed his political successes to his kind impulses and his loyalty to his friends. Pickett often described the "Supreme Bench scene" in a very dramatic way. He enjoyed telling it, and it was capital entertainment for the listener. He would not, however, "let the matter drop." Pickett brought suit in the Twenty-third District Court, San Francisco (James D. Thornton. Judge), against Supreme Judges Wallace, Niles, Crock- ett, and McKinstry, to recover damages in the sum of one hundred thousand dollars, for false imprisonment. His complaint was demurred to as being insufficient, etc., and Judge Thornton sustained the demurrer. Pickett, de- clining to amend, appealed. A motion was made to dismiss the appeal, for a failure to file the tran- script within the time prescribed. Notice of this motion was given on the 1 6th of May, 1879. Pickett took plenty of more time, and filed his transcript on the 24th of December following. The defendant Judges (except McKinstry, who was re-elected) went out of office a few days later. The matter was heard in January. 1880, before a full court — Chief Justice Morrison, and Justices McKee, McKinstry, Myrick, Ross, Sharpstein, and History of the Bench and Bar of California. 373 Thornton. These were aU new men (except McKinstry) elected under the new constitution, and Judge Thornton had l)een the District Judge who sus- tained the demurrer to Pickett's complaint. The court held that the four ex-Supreme Judges who were defendants had heen "disqualified to hear and decide the cause. Nor was there a Su- preme Court competent for the purpose until the fifth of January, 1880. The transcript was filed before there was a court competent to hear it. Under these circumstances we think the rules of this court, which would, if con- strued according" to their terms, deprive the appellant of an opportunity to pre- sent his cause to a court competent to hear and decide it, should be suspended." Justice Thornton w^rote this opinion and all the other judges concurred, except Judge McKinstry, wdio was disqualified. The appeal came, on its merits, before the court in January, 1881. Wilson & Wilson appeared for defendants. Judges McKinstry and Crockett; Delos Lake for Judges Wallace and Niles ; and Pickett appeared on his own behalf. The court was of one mind, saying : "We are not aware of any principle upon which this action can be maintained. There is no (luestion but that the Supreme Court of this State had jurisdiction to adjudge as to contempts, and to punish therefor. "A complaint claiming damages and stating in substance that the de- fendants, sitting as th^ Supreme Court, knowing that the plaintiff had not committed a contempt, and not having acquired jurisdiction over his person, falsely, wilfully and maliciously adjudged him guilty of contempt, and or- dered and caused his imprisonment, does not state a cause of action." In 1883 Pickett left San Francisco on a trip to the Yosemite Valley. At Mariposa he had to leave the stage on account of sickness, and, going to a hotel kept by Mrs. Jane Gallison, he introduced himself as "Philosopher Pickett," and was given every attention. The good and simple woman took him for a i)hilosopher indeed, but this consideration did not control her action. It was soon seen that the malady (of the stomach) was mortal, and the dying man gave his landlady, who nursed him herself, a letter to Judge Currcy, asking him to reimburse her for her ex])enses, and pay her charges. The Judge headed a subscription list and called on those whom he knew were as intimate as he had been with Pickett, some of whom refused to contribute. With the hel]) of Hon. W. W. Montague, C(^l()ncl 1 lolhsler, and others, a sum much larger than the entire bill, including the burial charges, was raised and remitted. This was after Pickett's death, wdiich came to him a week or so after he left the stage-coach. His "ministering angel" attended jiersonally to every detail of the last (hilies. la}-ing him in the public cemetery at Mariposa. Our ])hilosopher did not subscribe to the inspired insurance that man. is "a little lower than the angels, and crowned with glory and honor." He rather cherished the sentiment of Byron's lines over a dead dog in Newstead Abbey — quite complimentarv to canine and contemptuous of human kind. "A dead doe!" It was thus we heard an old bar leader refer to the lines, as being 374 History of the Bench and Bar of California. most convenient. They are more elegantly entitled in the book, "Inscription on the Monument of a Newfoundland Dog." Pickett never said anything so misanthropic as these lines, but he requested his landlady to see that they were read at his burial. She complied. As there was no one else to do it, she performed the office herself. The scene is pathetic to old acquaintances in the great city : the faithful woman, herself a stranger to the dead, staying the falling earth to read the strange words over the strange man! Perhaps he might have desired us to repeat them here : When some proud son of man returns to earth. Unknown to glory, but upheld by birth. TTie sculptor's art exhausts the pomp of woe, And storied urns record who rest below ; When all is done, upon the tomb is seen, Not what he was, but what he should have been. But the poor dog, in life the firmest friend. The first to welcome, foremost to defend. Whose honest heart is still his master's own. Who labors, fights, lives, breathes for him alone, Unhonor'd falls, unnoticed all his worth. Denied in heaven the soul he held on earth; While man, vain insect, hopes to be forgiven, And claims himself a sole, exclusive heaven. Oh man, thou feeble tenant of an hour. Debased by slavery or corrupt by power, Who knows thee well must quit thee with disgust, Degraded mass of animated dust! Thy love is lust, thy friendship all a cheat. Thy smiles hypocrisy, thy words deceit ! By nature vile, ennobled but by name, Each kindred brute might bid thee blush for shame. Ye ! who perchance behold this simple urn, Pass on, — it honors none you wish to mourn : To mark a friend's remains these stones arise ; I never knew but one — and here he lies. Such was his sepulture, and such the philosophy with which he turned from his problems (who shall call them petty) and faced the Unknown — to find, perhaps the clouds that had settled on his intellect, all rolled away ; cer- tainly so, (to quote a great lawyer and fine poet). " .... if there be a sphere Where all is made plain which so puzzles us here."* THE EDITOR. *Wm. Allen Butler, of New York, in "Nothing to Wear." REMINISCENCES OF OUR JUDGES AND LAWYERS <& efe & 1^9 <^9 & life a?9 & * HISTORY of the BENCH ^nd BAR of CALIFORNIA c^e^rf^t^^^t^^e^ejr, REMINISCENCES of JUDGES and LAWYERS JUDGE McKINSTRY. As a 7//^^/ prius judge, Hon. E. W. McKinstry dispatched business with promptness. The late Mr. A. P. Crittenden told the writer the following ; In 1855 I had occasion to visit Santa Rosa to try a case. It was the first day of the term of the District Court. The hour for the meeting of the court was 10 a. m., and a large number of lawyers and of parties interested were assembled, wdien, about 11 o'clock, the Judge (McKinstry) arrived from the adjoining county on horseback. Dismounting at the court house door, his honor mounted the bench and proceeded to examine the trial list which was placed before him. At that time the Code provided that in case of the sus- taining or overruling of a demurrer to the complaint, costs to the amount of $20 could be imposed as a condition to the amending of the complaint or filing and answer, as the case might be. .Vfter reading the list of cases, the Judge remarked, "I perceive here some twenty-five actions of ejectment. The com- plaints scan to be in the ordinary form and to be sufficient. Counsel for de- fendants in each of these actions will have an opportunity t(^ withdraw the demurrer within five minutes by the clock upon the opposite wall, and to answer forthwith. In case a demurrer is insisted on and it shall be sustained, I shall deem it my duty to require $20 to he paid by i)laintiff as a condition to his amenrling, and in case it is overruled the defendant must pay $20 as a condition to In's answering." To appreciate what followed, it must be understood that the terms in Sono- ma county were very short, and if a demurrer to the complaint were overruled, and the usual ten days given to answer without cost, this operated a continu- ance of the cause and a delay of at least three months, and initil the next term. Well, the five minutes began to run; after a lapse of about four of the five nn'nutes, a weak voice in the rear of the court-room exclaimed, 'May it please your honor, I withdraw the demurrer in Smith vs. Brown.' 'And I withdraw 378 History of the Bench and Bar of California. it in Williams vs. Johns.' 'And I in Hopper vs. Hopkins,' etc., etc. And thus in five minutes all the demurrers were disposed of." Some curious things happened in those days. Jasper O'Farrell owned a • rancho in Bodega, Sonoma county. A large number of persons were engaged in cutting his valuable redwood and pine trees, when an injunction was issued by the District Court to prohibit this wholesale destruction. Several hundred men calling themselves "squatters" (although comparatively few were actual settlers), met in mass meeting, and declared by resolution that land, like air and water, was the common heritage of freemen ; that no court dare attempt to enforce this outrageous injunction, and organized to resist. It looked as if there might be trouble, when it happened the president of the mass meeting was arrested for horse stealing. Now, this crime was apparently held in more detestation by the western settlers than manslaughter, since that species of property could not be constantly watched, as the herds wandered over large tracts of land ; and residents of the early days will remember that even the statute at one time provided that at the option of the jury a horse thief might be hanged, and they ivere, sometimes. The aroused indignation of those who attended the meeting mentioned was directed against their president; he left the country, the organization was dissolved, and the injunction became oper- ative. The Fitch Rancho, in the upper part of Sonoma county, had been confirmed by the appropriate tribunals and a final survey of the tract made under direc- tion of the United States surveyor general. Mr. Bailhache, one of the owners of the rancho, had brought many actions of ejectment against various persons who had intruded upon different parts of the rancho, had recovered judgments in such actions, and executions had been issued on the judgments. A great organization was formed of those who intended to resist the law, and as the organization was said to include hundreds of voters, it was feared that the local officers could not be depended upon to carry out the orders of the court. A bold deputy sheriff from Petaluma (the other end of the county), however, proceeded to make an effort to dispossess the defendants of the premises they occupied. Afterward a company of militia was sent to aid in the work. On arriving at the first house occupied by the defendant, the posse found the front yard filled with armed men, uttering threats, etc. Getting further assistance, the deputy turned the defendants out of the houses and put the tenants of Bailhache in possession. That night these tenants were in turn ejected by a crowd of black men, and the original occupants placed in possession. The persons who were charged with the last outrage were arrested for contempt and brought before Judge McKinstry at Santa Rosa. Being examined a witness would declare that no violence was attempted or threatened at the house in the yard whereof the armed men were assembled. The Judge — "How do you know there was no violence?" Witness — "1 was there." History of tJie Bench and Bar of California. 379 Judge — "Were you in the yard?" IVitn ess — ' * Yes. " Judge — ''Had a gun?" Witness — "Yes." Judge — "Mr. Clerk, enter an order for the arrest of this man as for con- tempt of court." This was done in several instances. Again, a defendant would swear, "A gang of niggers came and forced me to go back to the house from which I had been removed." Judge — "Are you sure they were negroes?" Defoidant — "They looked like it." As a result of the investigation a large number of citizens were sentenced to five days' imprisonment for contempt. They tore up the inside of the jail, but did not succeed in breaking down the outer door, and they stayed there for the full period of their sentence. There was no subsequent trouble in the execution of judgments in ejectment. The Seventh District included Sonoma, Napa, Solano, Mendocino counties and at one time Contra Costa or Lake. Early in the fifties the people of Sonoma county under a special statute, voted to remove the county seat from the town of Sonoma to Santa Rosa. Some irregularities occurred in the proceeding and citizens of Sonoma applied for a writ to compel a return of the county records to that place. The question had been argued at Napa and the judge had prepared a written opinion in favor of Santa Rosa. He was driven from Napa to Santa Rosa by a Mt. Nichols, arriving at the latter place in the evening of a very wet day. The "hotel" was a wooden building of two stories, the upper being an unfinished garret. The Judge and his friend were given a supper of cold meat and stale bread, and were shown to a "room" separated from the main "corral" by a cloth partition about eight feet high. They had noticed that the landlord was curious and anxious to learn the judgment to come in the law suit, and sus- pected he was ensconced near by where he could hear their conversation. "Oh dear," said Nichols, as he examined the bed clothes. "I wonder if they will give us hot meat for breakfast." "Or milk in our cofifee," added the Judge. "Isn't it terrible," said one. "Terrible," echoed the other, etc., etc. The Judge learned afterwards that on the same night the landlord had rushed about to the few inhabitants of the village, exclaiming: "I have heard enough; wc are gone; that Judge is going to decide against us; we may as well pack up and go." The next morning the few inhabitants aforesaid assembled in the little courtroom, wearing a morose and gloomy expression. The expression changed however, as the opinion was read, to a look of smiling content, and one of triumph when the judgment was reached in favor of their town, and they learned that the landlord was mistaken in his anticipation of the result. On the night referred to Colonel Hooker (afterwards known as "Fighting 380 History of the Bench and Bar of California. Joe") occupied a cot in the outer or main part of the garret or "corral." When he retired, the Colonel threw his braces, to which his trousers were fastened, over the bed post near his head, and stuck a candle on the flat top of the bed post. After reading awhile, he l^lew out his candle and fell asleep. Now the Colonel's trousers were uailt of some material which was ribbed, the raised portions being filled in with cotton batting. In the night all were alarmed by a strong smell as of burning cloth. Light was brought. The Colonel sat up upon the side of his bed, seized upon his pantaloons, and gave them a preliminary shake. Imagine his sensation, when all of the trousers disappeared in light ashes, leaving attached to his suspenders only the buttons by which they had been fastened to the garment destroyed. In some way the burning snuff of the candle had communicated to the cotton filling and run along each rib until the whole was consumed, yet leaving the general shape of the trousers unbroken until the Colonel's shake blew them to pieces. In conversing with Judge McKinstry, the writer found him an admirable raconteur. He told amusing stories in which many of the distinguished lawyers of a former day were actors. Thompson Campbell, Governor Foote, Balie Peyton, Colonels Irving and Hoge, Senator McDougall and others, statesmen and lawyers, whom he knew well, and all were remembered in his anecdotes. He spoke of meeting Ned McGowan at Tucson in i860, just after McGowan had been selected chief justice of the "provisional government" of Arizona; the last time McKinstry had seen McGowan he had tried him on a charge of being accessory to a murder — a murder, however, with which he had had no connection. And he mentioned seeing Phil. Herbert, an ex- member of congress, in Mexico, and of the strange life on the Texas frontier. He said that the politest men he ever saw were gathered on the banks of the Rio Grande. "Colonel, permit me." said a gentleman on one side of a cockpit, holding up three fingers (which meant three ounces). "Certainly, Judge, with pleasure," responded the gentleman on the other side of the pit, making a like digital sign. And the bet was made. Nobody could be charged with carrying concealed weapons. "They would let me drink nothing but champagne while I was with them," said the Judge, "and nobody was shot while I was there." JUDGE BURBANK. "I am old enough for a contest with the oldest man, and with the youngest lady." This, he told us, he said to a lady who had asked how old he was. We had asked him the same question which made him tell us this. He did not inform either of us, however, how old he was. The Judge once came into our notarial office in San Francisco, with a lady client, who desired to acknowledge a deed. It must be borne in mind that a notary was at that day required to examine a married woman "separate and apart from her husband" — he must therefore inquire whether lady callers were married or single. History of the Bench and Bar of California. 381 "Are you a married lady?'' we inquired. Before the lady could speak, Judge Burbank spoke for her : ''No, she is not married, but she expects to be." A deep, rich, and beautiful blush suffused the lady's features. We quickly wrote and attached our certificate of acknowledgment, with impression of seal. "Is your certificate all correct, do you think?" inquired the Judge. "It is, Judge," we replied. He then withdrew with his fair client, the latter still blushing, as if won- dering what the "certificate" contained respecting her. Judge Burbank told us on the street once that he had been "sick four years." We learned that he had been adjudged insane, and had been com- mitted to the Stockton asylum. "Is he now in the lunatic asylum, or out on bail ?" a wag afterwards inquired of us concerning the Judge. John Burbank, brother of Caleb, had made "lots of money" in Henderson county, Kentucky. Right after the Civil War, Breckinridge (John C.) hav- ing made his flight to Paris, France, John Burbank met him there, and said : "You look, John, more like an American Indian than a Kentucky gentleman." Burbank gave Breckinridge $5000 to send by telegraph to his family in Ken- tucky, and took him traveling in the far East. They went in swimming in the River Jordan, and Burbank said to J. C. B. : "John, you are recon- structed now. you've washed in the River Jordan, and all your sins are for- given." John Burbank, like Judge Caleb, was born and reared in ]\Iaine, and had no sympathy with the rebellion, as a political fact, but liked Southern people very much. A well-known San Francisco contractor told the foregoing to C. G. How- ard in the latter's law office, in our hearing, on May 10, 1888. He said that Caleb Burbank told it to him. In a case which Caleb Burbank once had for the same contractor who told the last story (the defendant being T. Rodgers Johnson, widely known in the Odd Fellows' order.) he took occasion in his address to the jury, to pay a high compliment to the luisiness integrity of his own client, the plaintiff. The plaintiff recovered judgment, and after the adjournment of the court, P)ur- bank said to his client, "Now, don't you be elated over what I said about you in my argument. That was necessary to my case." John Burbank has been dead many years. Caleb rjurl)ank died at Stock- ton in the Asylum for the Insane, May 5, 1888, aged eighty-two years. OUR FIRST PROBATE CASE. Tlie probate records of San Francisco extend back to June i, 1848, almost to the birth of the Judge who has been longest on that bench. The first alcalde, John Townsend, after whom Townsend street was named, was the 282 History of the Bench and Bar of California. highest judicial officer in the district. He was addressed as such by R. B. Mason, Colonel First Dragoons, U. S. A., then Military Governor of Cali- fornia, and directed to administer upon the estate of W. A. Leidesdorfif, then lately deceased, leaving a large amount of real and personal property. Governor Mason instructed Mr. Townsend that he should "take the neces- sary steps to put the estate into the hands of competent and safe men, who should be required to give bond and good security in at least double its esti- mated value, conditioned for the proper management, accountability and set- tlement of the same according to such laws as are now or may be created touching such matters." In pursuance of this authorization, Mr. Townsend took charge of the estate, and issued letters of administration to W. D. M. Howard. During the years 1848, 1849, ^^^ P^^^ o^ 185O) the first alcalde, or the alcalde of the first district, exercised the functions of a Judge of Pro- bate. Alcaldes Townsend, Leavenworth and Geary so acted during the periods named. On April 22d, 1850, the legislature passed an Act, in compliance with the State Constitution, Section 8, Article 7, entitled, "An Act to regulate the settlement of the estates of deceased persons" ; and Hon. Roderick N. Mor- rison, the first County Judge, was ex-ofHcio Judge of this court, and from which time the Probate Court, which passed out of existence at the beginning of the year 1880, may be said to date. BALIE PEYTON. Balie Peyton was one of the earliest and greatest men at the San Francisco bar. As we once had occasion to say of him, "he was a man of impassioned eloquence, of kind nature, the friend and champion of the squatters of Solano and Contra Costa." He had represented his native state, Tennessee, in Con- gress before coming to California. He, like Baker, was an enthusiastic Whig, and like Baker, he believed that S. S. Prentiss was the greatest of orators. Jn San Francisco, when the Whig party passed out, he became a Know-Noth- ing. In the middle fifties, he was in partership at the bar with William Duer, Delos Lake and Julius K. Rose (Peyton, Lake, Duer & Rose). Peyton was an influential member of the great vigilance committee of 1856; he exhibited "The Thieves' Ballot-box" at a public meeting in San Francisco, while the committee was holding sway, on June i6th. On June i8th, 1858, Peyton met that other bar leader, Gregory Yale, back of Oakland, to fight a duel. A letter from Francis J. Lippitt, who had caused the trouble, was received on the ground and restored peace. Peyton went back to Tennessee in 1859, leaving behind him only pleas- ant memories. It is related of him that at a Whig mass meeting at Nash- ville in 1844, he was on the platform when Prentiss made one of his best speeches. Peyton believed that this speech had never been surpassed for elo- History of the Bench and Bar of California. 283 quence and power. Prentiss fainted just as he closed, and Peyton, bending- over the great man's unconscious figure, exclaimed : "Don't come to, Pren- tiss. Now is your time to die; this is the culmination of 3^our fame." JOHN T. HUMPHREYS. John T. Humphreys was a native of Virginia. He was born on !>ilarch 30. 1830, and was admitted to the bar in that State in 1851. He came to California and settled at San Francisco in 1875. He was assistant city and county attorney there for two terms, 1887-90, under George Flournoy, Jr. He was accidentally run over and killed in San Francisco in 1898. He declared to us not long prior to that sad event that he was admitted to the bar long before his education was complete — that he was yet "daily learning new and strange things from the decisions of the Supreme Court." This calls to mind the observation of the venerable Al. C. Blake, who w^as on the bench of several courts in San Francisco in the sixties and seventies. He rarely if ever indulged in humor, and may be he was not indulging in it now. "Xo man," he said from the bench one day, "knows what the law is, except the Supreme Court." JUDGE LAKE AND FRANK PIXLEY. The case of Derbec vs. The City and County of San Francisco was an action to recover damages for the destruction of the type, etc., of the French newspaper. Echo du Pacifique, by a mob, when the news came of the assas- sination of President Lincoln, on April 15, 1865. The trial was not reached for a long time, when it took place in the old Fourth District Court, before Judge E. D. Sawyer and a jury. Frank M. Pixley was attorney for the plaintiff, and Delos Lake represented the city. The plaintiff fixed his dam- ages at $50,000; the jury allowed him $7500. The opposing counsel were strong men, and notoriously combative, and the trial was anything but tame. Among other interesting displays was the following: Mr. Pixley made an opening summing up for the plaintiff, and drew a picture of M. Derbec, working for years in an honorable calling and estab- lishing a lucrative business, and a mob destroying the work of thirteen labor- ious years. He touched upon the ruling of the Judge as limiting their claim, without, however, attacking the decision of the court. He went through the figures, as sworn and admitted, and after allowing 123^2 cents a pound, as the value of the lead when pied on the floor, made out a total of $17,950 proved damages within the ruling of the court, and asked them to give that sum. Judge Lake rose to close for the defense, and spoke of the claim for fabu- lous damages, which it had been sought to engineer through the court, and drew a picture of M. Derbec, if the court allowed the claim, or the jury 384 History of the Bench and Bar of California. accepted the proof, going' to that city of riotous luxury, Paris, to spend the remainder of his days in affluence on the fruits of the verdict, taking in his train the counsel ( IMxley), who for his share in procuring such verdict, would he entitled to — Mr. Pixley — I appeal to the court. Is this wit or insolence? Judge Lake (to Pixley) — Which you like, sir. (To the bench) That is for counsel to decide, not the court. The Court — I think the counsel for the defense (Lake) is traveling out of the ordinary course. Judge Lake — I am only following in the steps of the counsel for the plaintiff (Pixley), who ignored the evidence and complained of the rulings of the court. The court said this was a matter personal to the court itself, and the court did not think it necessary to interfere with Mr. Pixley, and did not need any protection from others. A certain latitude is allowed counsel, but there is no propriety in these personalities. Judge Lake — T think the counsel (Pixley) is unnecessarily sensitive; there is nothing in saying — Mr. Pixley — The counsel is continuing his objectionable personalities. The Court (peremptorily) — Gentlemen, drop the discussion. Judge Lake — Why does the counsel appeal to the court for protection? ^\^^y does he not direct himself to me if he wishes to take the matter up? He is not a schoolboy. Mr. Pixley (fiercely) — He is neither a schoolboy nor a blackguard. Judge Lake (with dignity) — That reply I cannot notice here. The Court — Gentlemen, this matter must stop here — I insist upon it. I will have no more of this unseemly altercation. It may be proper to add that both of the belligerents lived many years after this — strange as it may seem. D. W^ PERLEY. Among many incidents, ludicrous, pathetic, and serio-comic, which occurred in the strange life of the late erratic lawyer, D. W. Perley, is one which was witnessed by only two persons besides himself, and which never was embalmed in print. It is given, as it has fallen on more than one occa- sion, from the lips of the late Lloyd Tevis. the Midas of our vState, whose rep- utation among his brother financiers for business diplomacy, w^as as great as his general renown for multiplying dollars. "I think I know Perley," said Tevis, on one occasion when Perley's character for courage was in dispute; "I think I have a proper estimate of him. He will fight; there is no doubt about it. T have seen him tried on more occasions than one. He prefers peace; never seeks a quarrel, and when he gets into trouble his very first History of the Bench and Bar of California. 385 impulse is to show the white feather. But his pride of character soon asserts itself, and he is ready, even anxious to take the offensive. I never shall forget a scene which occurred in F'erley's room once (this was aljout 1867), in the Russ House, in San Francisco. It aptly illustrates what I have said of Perley's character as a belligerent. There was a dispute between Perley and Harry Logan, and I was present as mediator." We will interrupt Mr. Tevis right here a moment to say that Mr. Perley looked upon him as the very prince of moneyed men, and that this Harry Logan is the gentleman who w^as shot, nearly fatally by Guerrero, a rich young native Californian, and against whom Logan recovered heavy dam- ages. Now, to let Mr. Tevis resume: "During the negotiations between Perley and Logan for a settlement of their business differences, I was the only person in the room besides the parties interested. We were seated at a table, Perley on the side where the drawer opened. Logan was his vis-a-vis, and I sat at one end. It was difficult to agree on terms, and in the heat of the dispute, Logan, hot-blooded and impetuous, called Perley a liar. Perley sat wnth bloodless face and quivering limbs as though praying that the floor would open to let him through ; but the painful scene changed in an instant. Quickly pulling open the drawer of the table and catching up a brace of revolvers, he thrust them in the face of his astonished adversary, and, with terrible emphasis, bade him take his choice. 'Take your choice, take your choice,' he said, as he leaped from his chair, his face more crimson with rage and his eyes flashing fury; 'we'll settle this matter instantly.' It was now Logan's turn to back down, which he did wath as much grace as could be expected 'under the circumstances.' Logan is a brave man, but he had been too hasty, and in surrendering, he did so with dignity, acknowledging his error." BOOKER, CREANOR AND BEN. MOORE. Mr. F. H. Ayers, of Modesto, wdio is not a lawyer, sends us some pleas- ant recollections of Samuel A. Booker of Stockton, Judge Creanor and Ben. Moore. "My first recollection of Judge Booker," writes Mr. Ayres, "was in Stock- ton in 1851. He was the attorney for a man named Martin, wdio was the plaintiff in a case in the District Court, suing for a copartnership account- ing in a band of cattle. The defendant's attorney, D. W. Perley, tried to impeach the testimony of a witness in an affidavit. Because the witness had once been living in the Hawaiian Islands and taken the oath of allegiance to that government, which Perley denominated 'a pusillanimous monarchy,' the lawyer made the point that he was not worthy of belief. Thinking perhaps 38 6 History of the Bench and Bar of California. Mr. Booker, (who had not then been on the bench) might not be famihar with the status of persons doing business in those islands, I informed him it was only a quasi allegiance the man had to give, as I had been there, and was somewhat acquainted with the matter. Booker thanked me, and said he had informed himself on that point. I was surprised at his legal acumen. "In the early sixties, when Booker was sitting as Judge in a case where a woman, Mrs. J. P. D. Wilkins, was being tried for the murder of her husband in Stockton, a female witness was put on the stand, and when an attorney commenced questioning her she began to relate that she was a spiritualist and a medium. Judge Booker, who was apparently taking no notice of the wit- ness, but heard what she said, immediately turned toward her and said, 'Stop, Madam.' Then he told her that if she knew anything about the case, to tell it. but that he did not want any spirits in his court, and was not going to have anv. That settled the matter. The court-room was crowded, and his dictum was applauded. "In the fall of 1849, "^vhen Judge Charles M. Creanor, who had just arrived in California from across the plains and was camped with a party on the out- skirts of Stockton, some one came to him and said there was a man to be tried in the alcalde's court for some trivial offense, larceny, he thought, but whether grand or petit he did not know ; and, said he, the man had money to employ an attorney, but the Judge was going to try the case without his having one, or a jury either. So Creanor volunteered to go and defend him. He asked the Judge under what law he was to be tried, Mexican or American. The Judge did not know for certain. There were no law books in the court- room, but Creanor produced an old gazeteer of the State of Arkansas that had the Constitution of the United States in it, and showed the Judge that the man had the right of trial by jury under American law. and also had the right to an attorney. He got the jury, and the prisoner was acquitted." "I heard Judge Creanor say," writes Mr. Ayers, "that he believed they would have hung the man if he had not been there to defend him." "Ben. Moore, who was practicing law in Sonora, Tuolumne county,, in the fifties, was a peculiar character. He had a feminine, musical voice, and when excited it was pitched to a high key. But he was always decorous and had the esteem of his associates. On one occasion in a case in a justice's court between a white man and a colored man, Moore being attorney for the latter, when examining the jurors he was very particular, in questioning them, to know what State they were from. He would question them in this way : "What State did you say you were from?" If the juror answered "Texas," he would repeat the name short and quick, twice, "Texas, Texas," and then say, "All right, all right." If the juror answered "New York,'' he would say "New Yorke, New Yorke," with a long sound on the "e," and then say, 'We'll excueese you.' " History of the Bench and Bar of California. 387 FRANCIS J. DUNN. Among the causes celehrcs occurring in early times was one of forcible entry and unlawful detainer, brought by one faction of a church in Nevada City against another faction, which had taken possession of the church edifice and held it to the exclusion of the complaining brethren. The case was tried before Justice J. P. Van Hagen (he was afterwards a justice in San Fran- cisco), a weak, amiable old man, and by a jury. The proceedings were turned to a ridiculous farce from the start by the unfortunate fact that the prose- cuting attorney was excessively inebriated, and the other lawyers were not far behind in that regard. The justice sat behind a light pine table. The prosecutor, in arguing law points to the justice, and especially declaring that he should "go to jail with my brother Thayer," whom he believed was about to be committed for contempt, notwithstanding the court disclaimed any such intention, would strike the table heavily with a book, and make it dance almost to the judicial nose. "Do not pound my table, Mr. Dunn," said the justice. "]\Iay it please 5^our honor, I ivill pound your table," said Dunn, hitting the frail piece of furniture a blow that made it skip again. A few days before, Dunn had had a dog case before the same justice, the decision in which did not j)lease him. Alluding to that case, he said, "I dreamed a dream the other night, that an old fool of a justice decided that a dog is property (whack). "Don't pound my table, Mr. Dunn." "May it please your honor (whack), I zvill pound your table" (whack). Here one of the jurymen said: "We have had enough of this sort of thing. I have something better to do than to listen to this drunken gabble." "Yaas, you have, have you?" said Dunn, with a sneer. "Who are you? Know it all, don't you?" The other lawyers had been grinning, and rather helping out the absurdity of the thing; but this intervention was too much for them, and they thought it necessary to frown down further levity. The case proceeded until it came to Dunn's tiu'n to address the jury, when he began as follows: "Gentlemen of the jury; and wdien I say gentlemen of the jury, I mean eleven of you; for there is one of you who is very far from being a gentleman." Here the juror referred to jumped up and pulled off his coat, and started for Dunn, Ijut peace was restored with difficulty, and the case concluded. On one occasion, in replying to an argument, Dunn said : "The remarks of counsel remind me of a quotation from a classical poet. I cannot exactly recall the name of the poet, and I have forgotten the (|uotation, but if \ onuld repeat it, the court would see that it is apropos." It is related that Dunn prepared his statements for the Supreme Court without much condensation or regard to method, copying all kinds of papers and orders into them. Before printed transcripts were in vogue, such docu- ments were rather confusing. It so happened that as Dunn was arguing 388 History of the Bench and Bar of California. one of his cases in the Supreme Court, Judge Murray, under some mistake as to the facts, said to the advocate that the court did not want to hear him any further, hut some time after decided the case against him. Dunn soon had another case lief ore the same tril)unal. and commenced reading his inter- minahle transcript, with motions, orders, and evidence set out at appalHng length. "State your case, Mr. Dunn," said Judge ^Murray; "it is not neces- sary to read the whole record." "X'o you don't, may it please your honors," said Dunn ; "the Supreme Court told me that once before, and then decided the case against me. I am going to read this record and make the court understand me." This lie did, to the horror of the court, which had then no limit for time, and the reading and argument occupied three days. It was not long thereafter that the Supreme Court fixed a limit to the length of argu- ments before it. Tt is only fair to Mr. Dunn to remark that his eccentricities, when under the influence of liquor, now color the memory of him, perhaps to the unjust exclusion of other more worth}- impressions. His practice was large, and he was quite successful in conducting it. He was understood to be scrupulously and even belligerently faithful to his clients, and his convivial habits were broken l)y long spells of sobriety. He was not the greatest toper at the Nevada county bar. luit was probably the most eccentric man when inebriated. He was one of the most singular characters at this bar. He was a man of sturdy sense, somewhat uncultivated, who had picked up a fair knowledge of law, was ])leasant and accommodating wheii solier, and opinion- ated and surly when in his cups. BUCKNER AND ELLIS. It was once annonnced in a newspaper 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 circumstances of a certain female friend of his in Nevada City. It is one of the wisest acts on our statute books, although it has often been made the cover of gross fraud. Ellis was in the lower house of the California legislature in 1852. He was an able lawyer; but, like Baker, he was restive in harness, and thirsted for glory. He went back to his State and P.aker's State, and, during tlie 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, on one occasion, in a Nevada City court, Ellis glanced at the subject of his 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 his argument. Judge Stanton Buckner was from Missouri, to which State he returned. History of the Bench and Bar of California. 389 Sargent, in liis hasty history of the Nevada bar, tells this of Buckner : To demur was his strong forte. He was a kind and gentlemanly man. l)ut dis- agreeable to practice wdth, by reason of his prolixity and slowness. In argu- ing a petty criminal case one day before Justice Endicott, who 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 which indicated that he had a great deal more to say. "I will now show your honor,'' he said, "that a man is presumed to be innocent until he is proved guilty." "The court admits that," said Endicott, interrupting; "the court is with you in that; but there is no presumption that the court's bottom is made of cast-iron." EARLY HISTORY AND EARLY DAY LAWYERS. It has not often occurred that the making of a constitution or the estab- lishment of a State government has marked out a new era in civdized govern- ment beyond the confines of that State, or secures to the people outside of the State rights they had not formerly possessed. But such was the fact in regard to California. The admission of the State into the American Union was a most excep- tional occurrence ; it did mark out a new era in the course of the political his- tory of this nation because California became a free State, and from the beginning we made history fast. Three years after the territory was ac(|uired from Mexico, fully three hundred thousand people had settled there, and we built better than we knew. True, the people who then came were not engaged in permanent pursuits. Placer mining for gold was the only business of that time, but the material for a State was here, and it remained here. The young, the culti\ate(l and enterprising men of the whole country flocked to ihis new field, and ver}- soon a government was created comiuensurate with the needs of this i)e()i)le, and largely in advance of the governments of other new States which had been recently admitted into the L'nion. We had no laws here in the beginning because we had no territorial gov- ernment, so in the fall of 1849 a constitutional convention was called, and as early as the 15111 of December, ICS49, the first California legislature met, I)ursuant to that constitution, at San Jose. Mr. v^tc])licn J. Incld. atterwards a Justice of the Supreme Court of California, and for man}- years a Justice of the Supreme Court of the United States, pre])ared ;nid submitted to the legis- lature a Practice Act, which was duly passed, and the machinery of the new government was thus started. \\y a clause in the hrst constitution, the llrst Judges of the Supreme Court and of the District Courts were selected by the legislature. The first decision of the Supreme Cf 1900. In referring- to our effort to revive the project to build a monument to Baker in Golden Gate Park, San Francisco. Mr. Fitch, after stating one of the reasons why the work languished, said, "Baker ought to have a great monument" (we thought the word "great," so often misap- ])lie(l. was in good place here) — "in Oregon" — (we had no doubt he was going to stay in San Francisco, but accepted Oregon because that was the state that sent him to the senate) "at the mouth of the Columbia" (now we yielded to the poetic idea as the writer rose superbly) "on the heights above Astoria" ( then closing his fine conception) "where it could l)e seen and saluted by every passing ship." The words themselves are a nol)le memorial : "Baker ought to have a great monument — in Oregon — at the mouth of the Columbia — on the heights above Astoria — where it could be seen and saluted by every passing ship." F. P. TRACY. Frederick P. Tracy was city attorney of San Francisco for some two years — 1857-59. There were no regular terms then, the board of supervisors ap- pointing the incumbent. He practiced law in partnership with F. A. Fabens (Fabens & Tracy). There are many of our oldest citizens who assigned him to the very first rank of the early bar, but they estimated him from his powers as a public speaker. The profession accorded him no such high place. He was a good lawyer, but not at the front. He was not trained for the bar, and his legal education was defective. He took up the study comparatively hte in life. Indeed, he took up the study after he came to this State, when lie was about thirty years old. He was a strong man. but not strong enough to master a natural taste for stimulants, and for this reason he turned away from the calling to which he had been consecrated and wdiich he had followed for some ten years, that of a Methodist clergyman. The spiritual nature was never more 'than temporarily overthrown. He was an orator of a high order. He had a large figure and spoke weighty words. He addressed the moral sense of men. He loved the great poets, too, and could repeat from memory the whr»le of "The Lay of the Last Minstrel." One of the fathers of the Repub- lican party in California, he was the most notable "stumper" for his party, next to Baker, in the campaigns of 1856 and i860. He went to Washington City to see Lincoln inaugurated in March, 1861. He died in the East in March. 1862, and his remains were brought back to San Francisco, the funeral obsequies being in old Piatt's Hall on March 23, 1862. His wish, expressed in writing, was carried out : "Let miy funeral service be conducted by a minister of the Methodist church who never apologized for slavery." History of the Bench and Bar of California. 401 Tracy was born in Windham, Connecticnt, and was graduated from some New England Methodist coHege. He w^as about 56 years of age at his death, in 1862. He was a CaHfornia pioneer, arriving at San Francisco in August, 1849. ^J^"* ^^''^ same steamer with John Currey and Annis Merrill. A daughter of Mr. Tracy became the wife of the veteran public school teacher, John Swett, who was state school superintendent from January i, 1863, to De- cember I, 1867. Tracy left no estate, but his many friends erected to his memory, in Laurel Hill, a monument which is one of the noblest objects which the eye beholds, and which no visitor should fail to look upon, wdien called for the first time, for whatever purpose, to repair to that famed spot, where the virtues of our great men are exhibited in marble, and their frailties, with tlieir mortality, covered with the blooms of earth. LAWYERS SELECTING JUDGES. The lawyers of San Francisco, that is, 229 of them, got together in a public hall in 1879, to agree upon twelve men of that bar for Judges of the Superior Court, which court, by virtue of the new constitution of that year, was to be organized in the following January. The idea was that the con- ventions of the two great political parties, which had not yet convened, would follow the choice of this meeting of the bar, nominating judges for the new court. Hon. W. W. Cope, who had been a Justice of the Supreme Court from September 20, 1859, until the remodeling of the Court in 1864, presided over iiiis bar meeting. (Judge Cope was the gentleman, then living in Amador, who defeated Judge Terry for the Democratic nomination for Supreme Judge in September, '59.) There was of course much able and witty talk at this gathering. Some one moved that each person present be assessed so much to pay the cost of the hall and ]3rinting. Some one else said that certain gentlemen had alroad)' adx'anced money and it would not be right to include them in the assessment. Some time being wasted in the discussion, ex-attnrney general, Frank M. Pixley, jumped up and said nervously, in his loud, sharp \'oice, "Mr. President, I move that two men pass the hat. and that we stop this G — d d — d foolishness." Henry H. Reid promptly seconded the motion, it was carried, and the hats were passed, resulting in too much money being secured, but no provision was made for the surplus. As of historic interest we give the whole vote cast at the meeting, the twelve gentlemen first named being declared the choice i^f the bar for SujicriiTr Judges : 402 History of the Bench and Bar of California. W. P. Daingerfield 193 John F. Finn 155 W. H. Fifield 148 O. P. Evans 143 John Hunt, Jr 142 T. K. Wilson 136 J. C. Gary 123 S. H. Dwindle 119 R. Y. Hayne 116 S. S. Wright 115 T. W. Freelon 114 J. M. Allen 107 Columbus Bartlett 106 H. D. Scripture 98 C. B. Darwin 87 D. L. Smoot 80 Robert Harrison 67 John Proffatt 15 R. Guy McGlellan 15 G. N. Mott II J. W. Harding 11 P. B. Nagle 5 J. M. Seawell 58 Paul Neumann q;6 Robert Ferral 45 John T. Humphreys 29 J. V. Coffey 28 Davis Louderback 27 E. H. Rixford 25 Charles Halsey 24 T. H. Rearden 23 D. T. Sullivan 22 John Haynes 21 James M. Taylor 20 F. P. Dann 19 J. R. Brandon 19 J. A. Waymire 19 H. L. Joachimsen 18 J. L. Crittenden 16 William Crosby 4 George E. Harpham 4 D. J. Toohy 4 F. F. Taylor 2 P. B. Ladd 2 Of the twelve lawyers first named, those who secured the nominations of their respective parties and were elected, were William P. Daingerfield, O. P. Evans and T. W. Freelon, Democrats, and T. K. Wilson, J. C. Gary, John Hunt, Jr., J. M. Allen and John F. Finn, Republicans. The other four Superior Judges elected at that time were M. A. Edmonds, Republican, who had received no votes at the bar meeting, and three Democrats, Chas. Halsey, Roberts Ferrell, and Jeremiah F. Sullivan, of whom the last named received no votes at the bar meeting. The men who received votes at that meeting and who in after years became Judges of the Superior Court, were R. Y. Hayne, J. M. Seawell, J. V. Cofifey, T. H. Rearden, D. J. Toohy, and James A. Waymire. A. P. CRITTENDEN. Alexander Parker Crittenden was appointed to the United States Military Academy (at West Point) from Kentucky. He w'as a cadet there from July I, 1832 to July 31, 1836. He was a native of Kentucky. He was graduated on July I, 1836, and was promoted in the army to second lieutenant, First Artillery, on the same date. He resigned September 30, 1836. He was History of the Bench and Bar of California. 403 assistant engineer of the Baltimore and New York (Pennsylvania) Railroad in 1836-7, and held the same place on the Charleston and Augusta Railroad in 1837 and 1838. He was a counselor at law at Brazoria, Texas, from 1839 to 1849. when lie came to California and lived in this State for the remainder of his life, except a few years spent at Virginia City, Nevada, in the sixties. He was a member of the assembly of California at the first session, 1850, from Los Angeles. He arrived there a few months Ijcfore the first general election in 1849. He determined to leave the place and locate at San Francisco. He was out of money and set out to make the long journey of nearly five hundred miles on foot. A few miles from Los Angeles he was met on the road by an okl friend, who had been an army officer at West Point, named Coutts, who now resided at Los Angeles. Coutts took him back to his home, furnished him with means, and Crittenden was shortly afterward elected to the assembly. Then, instead of having to walk, he traveled to Sacramento, the State capital, at the public expense, his mileage amounting (at eighty cents a mile, counting both ways) to $1136. He is especially referred to in our article on the adoption of the Common Law. He drafted many of the statutes passed at the first session. Removing to San Jose he represented Santa Clara county in the assemblv in 1852, and again proved a useful member. While he was a cadet at West Point, he and some other students were dis- ciplined for some frolic which they indulged in, and were pursued by a guard and surrounded. Crittenden said, "Let us cut our way out ; that is the military wav." But his advice was not followed and they were all placed under arrest, and after trial were all expelled. Crittenden went to Washington City and sought the aid of his distinguished uncle, John J. Crittenden, then United States senator for Kentucky, to be restored to the Military Academy. His uncle told him that he was hardly on speaking terms with the President. The young man then went himself to the President, who was General Jackson, and the President, after hearing his story said, "You are the kind o{ material we want in the army. You go back to West Point, but on your way tarry a day or two at New York city, and when you get to West Point there will l)e an order there to re-admit you." And so it was, and Crittenden went through the four years' course. When Crittenden returned to San Francisco from Virginia City in 1866. he formed a law partnership with Samuel ]\1. Wilson. The distinguished firm of Wilson & Crittenden conducted a great business until the death of Mr. Crittenden in November, 1870. On November 7, when Mr. Crittenden's death was announced in the courts of San Francisco, John W. Dwindle made the motion to adjourn in the Twelfth District Court, and paid an elociuent tribute to the memory of Mr. Crittenden. He spoke of him as one of the ablest jurists in California, a firm friend, and amiable gentleman. At the conclusion of his remarks Judge Mc- Kinstry said : 404 History of the Bench and Bar of California. "I have known Mr. Crittenden a great many years. I have had perhaps peculiar opportunities for observing and admiring his integrity of purpose, his boldness of conception and thought, the vast resources of his mind. To say that in this man the elements were so mingled as to form a perfect character would, under the circumstances, be worse than panegyric. It would be unjust to our- selves, it would be unworthy of him ; for no man despised mere exaggeration more than he did. I cannot, however, but bear witness with all who knew him, that this was an extraordinary man. All here were accustomed to his forensic manner. His clearness of statement was so remarkable as that not infrequently it rendered all argument unnecessary. His matter was often too important to admit of ornamentation, but at times he was eloquent in the very highest sense, and he was always forcible and effective. He disdained every tortive approach and advanced at once the main idea involved in an inquiry ; accepted it in all its significance if possible — and moulded it to his purpose. He rarely met with an adversary who was stronger than himself. He was too magnanimous to press an undue advantage upon one weaker. For while he was positive in the asser- tion of his own opinion, he respected the positive opinions, honestly entertained, of those who differed from him. His natural quickness and aptitude for reason- ing were rendered more acute by training at the Military Academy at West Point, whence he was graduated near the head of his class, and by a long and active career in the practice of law; so that his inferences had become almost demonstrations, and the trenchant blade of his logic hewed its way to a con- clusion with a force which was irresistible. As a lawyer, as has been well remarked by Mr. Dwinelle. he was not so familiar with mere cases as many others, but his mind was imbued with the philosophy of his profession as pre- sented in the great principles which are taught by the masters amdng the civil and common-law writers. But profoundly versed as was Mr. Crittenden in the peculiar lore of his own profession, his acquirements were not limited to its demands. It is said by those competent to judge that he was deeply read in the pure mathematics, and that he was greatly interested in the progress of the physical sciences, having far more than a superficial knowledge of some of them. To a certain familiarity with the ancient classics, he added a proficiency in several modern languages, and was generally and thoroughly acquainted with the poetry and polite literature of our own tongue. But it was in the hours of relaxation from his labors, and when his reserve had melted under the genial influence of an enlightened social intercourse, and he gave way to his gentle, kindly, cheerful humor, that one fully recognized how much of attractiveness, there was in this talented and cultivated man. Generous to the extreme there was no sacrifice he refused in order to subserve the interests of a friend. So that while all who knew him admired the eminent jurist and the accomplished orator, those who knew him best loved him best." WILLIAM T. WALLACE. Hon. William T. Wallace, a member of the present Board of Police Com- missioners of San Francisco, and who has been attorney general of the State, Superior Judge of San Francisco, and Chief Justice of the State Su- preme Court, was born in Lexington, Ky., March 22, 1828. He was well- connected and well-educated, and was admitted to the bar in his native state and practiced there for a time. He arrived in California in 1850, and located W ^%i r . . , ■, ■v."?»*La r*. "-■■ "*''"w(PP>^^^ ^^^^^w H ^^^^^^^1 y J ^ <#• ^n N-^^pK^^^^^^p^" '^^ ^^^^^^^- ----- l^m. r. I7a//ace History of the BencJi and Bar of California. 405 at San Jose, where he married a daughter of Hon. Peter H. Burnett, our first Governor. Wallace, who long ago came to he a man of great physical weight and stature, was at that time cjuite tlhn, and consumpti\e, weighing only 140 pounds. Judge Hester, district attorney of San Jose in 1852, resigned to take the place of District Judge, and Wallace was appointed District Attorney. He traveled with the judge to the county seats of the four counties comprising his district. He was district attorney for one year and went to each county seat six times. His first suhstantial success at the practice was made about 1853, when he induced the ojjstinate administrator of a certain large estate to pay over to a daughter of the deceased, her portion of the inheritance. This was $75,000. and she, the daughter, paid Judge Wallace a fee of $15,000. A client of Judge Wallace, a prominent physician of San Jose, had married the widow. The estate lay in another county, the administrator would not for a long time turn over the daughter's portion, and the County Judge declined to make the order usual in such cases. Judge Wallace managed to get the admin- istrator to pay over without the aid of legal process. He was attorney general from January, 1856, to January, 1858. (The terms of State officers were then for two years. ) He was a Justice of the Supreme Court from January 10, 1870, to January i, 1880, being Chief Jus- tice from February 24, 1872, to January i, 1880, a period longer than that served by any other Chief Justice, excepting the present incumbent. Chief Justice Beatty. Judge Wallace was elected by the Democrats of San Francisco to the assembly, to fill a vacancy, at the session of January-March, 1883. He was elected by the Democrats in the fall of 1886 a judge of the Superior Court of San Francisco, and served a full term of six years. He was presiding judge of the court for the year 1891. He was re-elected in the fall of 1892 by the Democrats and Non- Partisans, and served a second term, ending December 31, 1898. In 1899 Mayor Phelan appointed him a member of the first Board of Police Commissioners under the charter of San Francisco, adopted in 1898. He is now ser\'ing on that board. Judge Wallace is a member of the Board of Regents of the State University, and his term will expire in 1902. The ex-Judge is a millionaire and has a numerous posterity. The well- known San Francisco lawyer, Ryland B. Wallace, is his son. In December, 1887, this distinguished man, then a Judge of the Superior Court of San Francisco, gave us some of his memories of our early judges and lawyers. We quote him as follows, from our notes taken at that time: Murray was unquestionably the greatest man who ever sat on our Supreme Bench. Rut he never studied any. Had he possessed the industry and patience of Judge Field, he would have become another Mansfield (Mansfield's family name was Murray). He had a good voice and fine person, the portrait extant of him being little more than a caricature. He had remarkable alertness of mind and would catch a case with a swiftness and breadth of grasp which I have seen no other judge exhibit. Without having examined the transcript he would 406 History of the Bench and Bar of California. yet be able to correct counsel in statements of evidence. He would in some way, early in the oral argument, catch the "corner facts," to which all others in a case must bear more or less fixed relation, so that when there was any material misstatements made by counsel, there was a disturbance sensible to his subtle mind. His opinions were written on the spur of the moment with no forethought or effort, often on the flyleaves of transcripts. They still are sound authority and often cited. Murray drafted the bill which passed the legislature, but which Governor Weller vetoed, to prohibit gambling. I think he hoped thus to have a barrier raised between him and his great vice. His bill made it a felony to conduct a faro bank either as owner or employe (dealer), while patrons of the game were only declared guilty of misdemeanor. Governor Weller, a man of strong com- mon sense, vetoed this bill in words which I think I can almost exactly recall : "This bill," he said, "makes too great a distinction between gentlemen who sit on opposite sides of the same table." The father of Charles T. Botts perished at the burning of the theater in Richmond, Va., in 1811. He was one of the counsel on the trial of Aaron Burr, and his speech on the occasion shows the same general cast of mind that his son, the California judge, possessed. When the latter was appointed Judge of the Sixth Judicial District, comprising Sacramento and Yolo counties, he called upon Judges Murray, Burnett and Terry, of the Supreme Bench, in the chamber of ■that tribunal, when, court having just adjourned. Judge Botts was tendered by the dignitaries named, their congratulations on his appointment. These he re- ceived with characteristic self-possession. "I will try to do my duty, but it is quite likely," he said, "that you gentlemen will overrule me sometimes. We can't expect the Supreme Court to be always right." You remember Baker's hit at Judge Botts? The Judge in the State campaign of '58 edited a Democratic paper, in which he paid a great deal of attention to the Republican orator, not assailing him personally, however. In one of his open air speeches, toward the end of the contest. Baker took occasion to return the compliments of the tireless editor with interest. "This Botts family," he said, among other things, "is a great family. It has great talents and great eccentricities. John Minor has all the talents and Charles T. all the eccen- tricities." * Judge Botts was, at the end of the fragmentary term for which he was ap- pointed, succeeded by Hon. John H. McKune, who had defeated him at the fall election of 1858. The Sacramento bar gave Judge Botts a dinner on his retiring from office, on which occasion the thought was made prominent that the fate of a judge at a popular election is no criterion of his merit — that it is but a doubtful compliment to say of a man in ermine — "He is a popular judge." With Colonel E. D. Baker I was very intimate. My home was at San Jose while he was at this bar, and when I visited San Francisco I sometimes went to Baker's house by his invitation. I was associated with him in quite a number of cases in different counties, among them the Peralta will case and the Scale mur- der case. This latter was tried at San Leandro, then the seat of justice of Alameda county. Scale was a brother of H. W. Scale, and killed a man named Shore in a land dispute. Baker, /ames A. McDougall and I defended Scale on an indict- ment for murder. Wm. Van Vorhees was the district attorney, and associated with him for the prosecution was Edward Stanly, uncle of Judge Jno. A. Stanl}'. We called him, as we did Baker, '"Colonel,' — he had not yet been military *John Minor Botts, elder brother of Charles T., was a Virginian statesman of distinction, and of the same political faith as Baker — first a Whig, and, after that party dissolved, a Republican. — Editor. History of the Bench and Bar of California. 407 governor of North Carolina. Tlie accused had killed Shore by shooting him with a pistol, and the deceased had struck and slightly wounded Seale with an axe. The point was one of time — whether deceased used his axe before or after he was shot. There was but one witness for the prosecution, and he testified that Shore did not use the axe until after defendant had shot him, and then by an ascending stroke, he having his hand resting, as he was shot, upon the perpendicular axe handle. For the defense there was also but one witness, and he an illiterate man, who testified that deceased stood by his axe in the same position as placed by the other witness, but that he used the axe before he was shot, raising it and bringing it down upon the defendant. The defense was enabled to show that the hat of the accused was cut in front by a sharp weapon, as also his forehead. Van Vorhees opened and Stanly closed for the people. The former, who was an effective speaker, concluded his address to the jury with the words: "Gentlemen, if the prisoner is not guilty, the State does not desire his blood." Baker rose at once, and repeating these words, made a most masterly speech. He spoke for two hours and a half, using these words of the district attorney as a text, which by frequent and fervid repetition, he made to run all through his splendid address. All that he said sprung from these words and related back to them, reminding me now, as I think of it, of a beautiful carpet in which there is one striking figure as a center piece, and to which all other parts have rela- tion. That Van Vorhees could have intended to give Baker such a cue is out of the question, as the two men did not like each other. The defendant was found not guilty. On this trial. Colonel Stanly became so incensed at Baker that he desired me to bear to him an unfriendly message. The tragedy from which the trial resulted occurred where two fields adjoined, one partly an open field, the other entirely enclosed. One of Stanly's questions was, "if a certain thing testified to happened in the open enclosure." Baker asked the court to have Stanly explain what he meant by an "open enclosure." Stanly was nettled by the advantage taken of this slip and made an ill-natured reply. Once or twice thereafter. Baker made perhaps too fine objection to Stanly's examination, and when the trial was ended, Stanly's ire had mounted to a high pitch. But Judge Wallace refused to bear his message to Baker, and reminded him that he (Stanly) and Baker had always been close personal and political friends. The matter went no further. Baker always was possessed of the idea that his forte was military leader- ship. He said that his place was at the head of an army.* I think, of course, with all his friends, that he was mistaken in this. How common such an error is ! Baker, the brilliant orator, envied the brawny, com- manding will of Broderick, while the latter deeply lamented his inability to talk like Baker. As a speaker, I never heard of Baker's making a failure. He couldn't fail. He had so much knowledge, such wide reading, the most wonderfully retentive memory I ever knew a person to possess, and the classics, modern and ancient, were an open book to him. He could make a great speech impromptu, and then dictate it to a reporter almost word for word. You will remember Miss Annie A. Fitzgerald of Santa Clara, whose poetical effusions used to be seen in the press occasionally in the fifties and sixties. On a professional visit to San Jose, Baker once came into my oflfice, and noticing some verses of this lady on my table, read them and remarked that ihcy wore *He said the same thing to the Rev. and Hon. Samuel B. Bell. "Whatever I may have accomplished as a speaker or lawyer," said he, "is as nothing com- pared with my possibilities as a soldier. I have often talked with eminent mili- tary men— graduates of West Point, and I feel that I know the art of war better than any military captain whom I have met." — Editor. 408 History of the Bench and Bar of California. pretty and poetic. In allusion to a habit of his, I suggested that he might find occasion to quote them in one of his speeches. He said he might do so. I told him to take the slip along. "No." he said, "I know them." When I learned that he had never seen the verses before, I doubted his ability to repeat them. He then as I held the paper, repeated them word for word. I forget the subject, but I think there were as many as six stanzas, of four or six lines each. Some five or six months after this, I told the circumstances to Milton Williams, a San Jose attorney, and it so happened that Baker came in while we were yet talking about him. He was in a linen ulster, having just arrived by stage from San Francisco. I spoke at once of what I had been telling Milton Williams, and Baker said, "I can repeat the verses now; give me the first line." I held the printed slip, which all these months had been on my table, and read the first line, whereupon Baker repeated the entire poem, word for word." Baker's visit to San Jose, now referred to, was to take part in the case of the Peralta will, before Judge Hester, of the District Court. I was also asso- ciated with him in* support of the will in this case. We lost the case, and an incident of it will furnish one of the rare instances of Baker's loss of tem- per, and further serve to exhibit his wonderful memory. On rising to address the jury he first paid to Judge Hester a compliment for his fairness and ability. So eloquent, felicitous and graceful was this tribute, that he seemed to be throwing over the shoulders of the Judge a garland of fresh flowers. But, after we had lost the case and were moving fo-r a new trial, the judge, in settling the bill of exceptions, kept ruling out what we wanted in, and we saw that our motion for a new trial would inevitably be denied. Baker became incensed at this, and, addressing the court, said: "Your Honor, in my address to the jury on the trial of this case, I took occasion to use these words." And he then repeated his fine encomium on the Judge, just as I had heard him utter it first. and then added : "I desire to take it all back — all back." And in this connection, I may say that Baker was always circumspect and chaste in speech. I saw him in so many diflerent situations and places, public and private, that any fault of his in this respect must have been noticed by me. But I never heard him utter a sentence on any occasion that might not have been spoken to the gentlest lady in her parlor. While depreciating himself as an orator. I think this was simulated. He used to tell me that he thought he stood perhaps at the head of the third-rate orators in the United States. To his mind. Sergeant S. Prentiss was the great master. You tell me that he declared to the late Major Tompkins of this bar that he "couldn't hold a candle to Prentiss as an orator." He said as much to me, often. Prentiss is the only orator of whom I ever heard him break into eulogy. Clay, whom I regard as one of the greatest of orators, didn't seem to have excited Baker's admiration. I have seen Clay, in my boyhood, do things on the stump that even now impress me as wonderful. Baker's sentences were full of beauty, and read grandly. Now, Clay's words were almost commonplace. If you should read a report of one of Clay's speeches, you would say, "That is just what he said, but what is it that impressed me so when he said it?" Clay's voice was full of music and penetrating power, and his strong personality overcame you. I especially recall one scene of Clay, which I pictured to Baker. It was at Lex- ington, Kentucky, his Ashland home being near by, and Clay having just returned from Washington. He was received by the populace with most extravagant demonstrations of delight — they had met him on the road, removed the horses, and drawn his carriage into the city. When the multitude, hoarse from cheering, had become quiet. Clay calmly surveyed it a moment, then taking out a snuff-box he always carried, said, "Fellow Citizens, I believe I will take a pinch of snuff." So doing, he brought out a large silk handkerchief, which he used with a loud report. Then, very deliberately at first, he proceeded to address the throng, and soon all were spell-bound — he was making one of those overpowering off- hand speeches such as only he could make. History of the Bench and Bar of California. 409 I said I told this to Baker. He did not appear to be much surprised; he said, "That's like Clay." "Mr. Webster," he observed, "would not have done such a thing. He had too much good taste." Then he added, thoughtfully, "If Web- ster had done such a thing, he could never have recovered from it." That was just the point — Claj' did recover from it. Yes, Baker believed that Sergeant S. Prentiss was, beyond peradventure, the greatest orator this country ever produced. On Decenil)cr 8, 1873, Mr. Henry E. Highton, of the San Francisco bar, bent to a local paper a letter signed "Publicola," in which he strongly nrgecl the election of Chief Justice Wallace to the United States senate. This letter merits notice for its discussion of two interesting points advanced against the propriety of the election of Judge Wallace. These two objections were, first, that by reason of his judicial office the judge was constitutionally ineligible; and, second, that it would be a breach of propriety to transfer him from the supreme bench to the senate. The first point was based on Section 16, of Article 6, of the State constitution : "The Justices of the Supreme Court shall be ineligilile to any other office than a judicial office during the term for which they shall have been elected." Mr. Highton argued that United States senators are federal officers; that their qualifications cannot be prescribed by the states; that the federal consti- tution is exhaustive and exclusive on the subject and there can be no valid state legislation thereon ; that the clause cjuoted from the State constitution was designed simply to prevent judicial officers fromi holding executive or legislative state offices. He further cited the case of Judge Trumbull, of Illi- nois, who was elected a United States senator, while on the bench, against a plain provision in the constitution of that state, and who was admitted to his seat. As to the propriety of transferring a judge to the senate, Mr. Highton con- tended that so far from it being a breach of propriety, in the case of Judge Wallace, there was a peculiar fitness in it. He thus ex])ressed himself on this head : "By the very exigency of his position, he had been, for some time at least, mainly occupied in the consideration and solution of matters of private right, and withdrawn from all active interference with the executive and legislative branches of the State government. What better preparation could be devised for useful membership in the senate of the United States? That body is con- servative in its character, quasi judicial in the words of Joel Tiffany, compelled to reconcile the jarring interests of different states, the regulator of the last resort of our relations with foreign governments, which demand the exact ai)p!i- cation of the principles of international law, and invested with the highest judi- cial functions and powers in cases of impeachment. Surely it cannot be hon- estly asserted that the mind and training of a lawyer, the discriminating habit of a judge, and the incorruptibility of a gentleman, are necessarily disqualifica- tions for the performance of these delicate and complicated duties. Mr. Highton concluded by alluding to the duties of the governor of a state, his relations to the legislature etc., and declared that in the candidacy of a 410 History of the Bench and Bar of California. governor for the United States senate there was a positive indehcacy which was inexcusable. JOSEPH W. VVINANS. The late J. B. Townsend was very tiresome in trying his cases, and we told in our book of 1889, that upon one occasion he answered "ready" to a case before Judge E. D. Wheeler, of the old Nineteenth District Court, San Francisco, the Judge, addressing the other lawyers present, said, "No other case will be reached today, gentlemen." Something very like this occurred in Judge R. F. Morrison's District Court in the same city in 1877. Joseph W. Winans. of whom a sketch appears in this History, was a fine scholar by general consent, and was by many accounted an orator. Many attorneys were in court on the occasion referred to, waiting for their cases to be called, it being law and motion day. Mr. Winans' opportunity came first, and it seemed that he would never stop. He would frequently pause as if about to sit down, but just as hope was brightest, he would resume. B. S. Brooks at length arose and said in his demure way, "Your Honor, do you think you will be able to hear any other motions today?" His Honor smiled (something Judge Morrison did not often do, although not a stern man at all) and said, slowly, "Yes, I think I will." Mr. Winans' father, who almost became a centenarian, always lived in New York city. He w-as quite rich to the last, getting a start in the grocery business early in life, and investing in real estate. He put up a row of build- ings after he was 90, and superintended their construction himself. When he was 92 or 93, he visited his eminent lawyer son in San Francisco. The lawyer w-as then over 60, but the old man would refer to him in conversation as his favorite boy. He desired Mr. Winans to break up here and remove with his family to New York city. "It would be a costly move," remarked the lawyer. "How much would it cost?'' asked the father. The answer was, "To break up here entirely, and take my family and library and effects to New York city, and get settled there, would cost probably ten thousand dol- lars, father." "I will let you have it, Joseph," said the father. Mr. Winans really entertained the proposition for some weeks, then relin- quished it. The old man outlived his "boy" two years. Our bar leader died in San Francisco in 1887, aged 66. His father died in New York in 1889, aged 96, and leaving an estate worth two millions of dollars. If the dates had been reversed, the cultured lawyer would probably have gone to New York, indeed, and to the classic and romantic lands of which he wrote, and have fully gratified his taste for art. Mr. Winans was not only a great buyer of books, but he spent a little fortune in the binding of them. He showed great nicety in this matter. And History of the Bench and Bar of California. 411 this brings to mind some clever words by Irving Browne, editor of the Albany (New York) Laiv Journal, written in 1885. No man enjoyed them more than Mr. Winans. They now follow : The Binding of Books. — To make the books suggestive of the contents : Thus, as to colors : One might appropriately dress military treatises in red, theological in blue, gastronomical in claret or salmon ; books on magic in black ; a history of pugilism in blue-black, instructions for actors and singers in yellow, and guide-books and travels in orange. One might bind Lamb in pea-green; the History of the Friends in drab; of the Popes in scarlet; and Cicero de Scnectute in gray; while Magna Charta should always be preserved in violet ; an account of the Crimean \\"ar in Russia, a history of the Barbary v^tates in Morocco, accounts of the intestinal convulsions in vellum, works or Arboriculture in tree-calf; Bacon in hog-skin, biographies of celebrated women in muslin, statistics of the lumber trade in boards; a description of Saxony in sheep ; and all love tales in plain calf with clasps ; criminal trials should be in full gilt, and accounts of famous sculptors in marbled side and edges. Any history of the Baptists should not have sprinkled edges. All books relating to defective vision should be blind-tooled, and books about the deaf and dumb should be in quiet colors." ARCHIBALD C. PEACHY. It has never been known to more than a very few persons — and, indeed, it is not easy of belief — that David S. Terry once refused to accept a chal- lenge to fight a duel, sent him by one whose station in life warranted its accept- ance. But he did decline to fight Archibald C. Peachy. It was early in 1879, when the last constitutional convention, of which Terry was a member, was in session at Sacramento. There was no correspondence on the subject. Judge Terry, when he received the hostile message, simply told the bearer that he would not entertain it, because Mr. Peachy had become nearly blind. Mr. Peachy sent him word that he could see as well as he cared to, but nothing further came of it. The parties were friends, but Terry, in conversation with a number of gentlemen, had dropped a remark, half jocular, touching Peachy's private life, which even a sensational newspaper could hardly afford to print. Mr. Peachy had been a member of the great pioneer law firm of Plalleck, Peachy & Billings. He was well off. He was a very able man, and a fine- looking one — tall, straight, proud, dressing elegantly and tastefully, carrying a cane and wearing large gold-rimmed eye-glasses. He was a Virginian, born of an old aristocratic family at Williamsburg, October 8, 1820. He came to California in 1849, arriving at San Francisco April ist. In 1852, April 5th, he fought a duel with James Blair at the Presidio. It was bloodless. 412 Historv of the Bench and Bar of California. Air. P'eachy was a member of the assembly in 1852. He was in the senate at the sessions of i860 and 1862, and was chairman of important committees. His old law firm owned Montgomery Block, and held the property down to the year 1872, when the partnership was dissolved by the death of General Halleck. On January i, 1874, Mr. Peachy sold his one-third interest in Mont- gomery Block to General Halleck's widow for $72,500. He died on April 17- 1883. B. F. WASHINGTON. B. F. Washington died at San Francisco January 22. 1872. He was born in Jefferson county, Virginia, in 1820, w^as admitted to the bar in Virginia, and practiced there some years. He came to California in 1850, and in that year was elected the first recorder or police judge of Sacramento city. At the end of his term he resumed law practice in Sacramento. In 1852 he became editor and part proprietor of the Democratic State Journal at Sacra- mento. He became also part owner of the Tinies and Transcrif^t in the same city. He fought his duel with Washburn when he was editing that paper. Washington was collector of the port of San Francisco under President Buchanan, t 857- 1860. He was editor of the San Francisco Examiner from June. 1863. until his last illness, six weeks before his death. In 1868 he was a member of the Board of Tide Land Commissioners appointed by Governor Haight, his term lasting four years. He left two sons and two daughters, who are still living. He was a large man, over six feet in height. He had decided gifts as an orator and a poet. His death occurred when he was fifty- two years old, January 22, 1872. The duel with Washburn ( C. A.), who was editor of the Alta-California, took place on the San Jose road near the bay shore on the morning of March 2 1 St, 1854. The weapons were rifles, distance fifty paces. The seconds of Washburn were Benjamin S. Li])pincott and George Wilkes. Those of Wash- ington were Phil. T. Herbert and J. Watson. At the first fire, owing to some misunderstanding in regard to gi\-ing the word, only Washburn fired. Wash- ington having handed his weapon to one of his seconds, who in his excite- ment, fired it in the air. On the second attempt Washburn's piece was acci- dentally discharged in the ground. They fired again witliout either being injured, Washington's Ijullet passing through Washburn's hat. .V fourth exchange of shots was had without harm, but the weapons were loaded again, and now, on the fifth exchange, both parties fired simultaneously. \\^ash- ington was unhurt, but Washburn had the point of his shoulder-blade shat- tered, the ball lodging in his back. It was a serious wound, but he recov- ered. He became United States minister to F'araguay, by appointment of President Lincoln. History of the Bench and Bar of California. 413 EDWARD J. PRINGLE. Mr. Pringle. of whom a notice appears elsewhere in this History, before commencing practice spent a year travehng over Europe, with the purpose of illustrating past and future reading. He carried a letter of introduction from Professor C. C. Felton, of Cam- bridge, to Mr. John Forster, the editor of the London Bxauiiner, who invited him to a dinner, which was e\er memorable to him. The party consisted of Carlyle, Dickens, Ralph Waldo Emerson, Forster and himself. Carlyle did nearly all the talking and found ready listeners. After dinner Carlyle turned around to the fire-place, put up his feet against the chimney in true American style, and smoked a long clay pipe. He talked about the pseudo reformers — ''kicking up tranquility;' as he phrased it — in Ireland. He was very bitter against the Irish agitators, and talked so much about the musket as being the best cure for the complaint that Dickens laughed, and called it musket wor- ship. The great American philosopher listened to Carlyle with much interest and spoke but little. Emerson and Carlyle not only had the kinship of genius, Ijut were warm personal friends. Some years later, in welcoming some new triumph of Emerson's brain, Carlyle exclaimed: "Here comes our friend Emerson with news from the Empyrean." Dickens, who took advantage of the lulls in Carlyle's talk, told of the efforts he was making with Miss Curdett Coutts to send the abandoned women of London to the colonies. He ex- pressed great surprise that the prospect of leading honest, comfortable lives as wives in the colonies failed to induce them to tiy from the misery of the London streets, whose glare and glitter seemed to hold them in permanent fascination. Some years before his death, Mr. Pringle told us of many events of great historical interest in European history. In the years 1847 ^^'^^^ 1848 began the great political revolutions. Mr. Pringle saw Louis Philippe at the Tuileries during his last fete days, in July, 1847. ^" ^'""^ spring of 1848 the rising political storm on the continent inflamed the Chartists in England, whose threatened demonstration in London in April. 1848. caused widespread uneasiness. Mr. Pringle ran over from Paris to see the row. but the loyalty of the people of England rose with the occasion. It was interesting to see the great actress of the day, Rachel, in the two counter tides. Mr. Pringle saw her called out in Paris to sing the "Marseillaise." kneeling to the tricolor in a perfect storm of republican shouts, and he saw her called out in London to sing "God Save the Queen' in a tempest of loyal frenzy. He carried letters to Switzerland from Professor Agassiz. One of the letters was to an innkeeper on the high Alps, where Agassiz had spent some seasons in marking the course of the glaciers. The party of young men, four in num])er — one of whom was a cousin of Ralph Waldo Emerson — were delighted with the hospitalities of the host and his ])retty daughters. 414 History of the Bench and Bar of California. Some years after it transpired that the liost had selected these pretty daugh- ters (?) to add to the charms of his house. They had been carrying on, for many years, robberies and murders of their guests. Under the floor, where our little party had been so agreeably entertained, were the bones of many travelers — the recollection of whose fate brings to mind the crimes of the Bender family of Kansas. Agassiz, it will be remembered, was born in Switzerland. To his letter to the Alpine innkeeper Mr. Pringle, no doubt, owed his life. A very interesting case may be mentioned in which Mr. Pringle won a signal triumph, that of Montgomery vs. Bevans, decided by Judge Field in the United States Circuit Court. Montgomery, after whom Montgomery street, San Francisco, was named, was commander of the United States sloop of war Portsmouth, which entered that harbor in 1846, in which year Mont- gomery took possession of the town in the name of the United States. Under his command were two grown sons, whom he dispatched to Sutter's Fort in a small boat by way of the Sacramento River, accompanied by some sailors and carrying with them a considerable sum of money to pay off soldiers at the fort. They never reached their destination and never returned, and never since have been heard from; and their fate is still shrouded in profound mys- tery. A Mexican grant for which they had applied was issued to them just after their departure up the Sacramento. Commodore Montgomery, as the heir-at-law of his two sons, sued Bevans to dispossess him from the land granted. Bevans held under a second grant issued to him, on the theory that the Montgomery boys were dead when the first grant was issued. This theory Mr. Pringle successfully upheld, and his client prevailed. Mr. Pringle's knowledge of the law was the product of long and patient study. He was a man of broad scholarship, pure and exact in his expression, and knightly in his bearing, both in and out of court. As was said of Coke : "No legal question could arise wdiich he could not illustrate out of the stores of his learning," and like that great apostle of the law he delighted in good clothes, well worn, agreeing with Sir Edward that the outward neatness of our bodies might be a monitor of purity to our souls. He possessed excellent literary taste and was a critical judge of the fine arts. Pie was not the victirn of any vice, and enjoyed the blessing of health to a remarkable degree. THE EDITOR. San Francisco, Cal. THE MEN OF THE ^^ FIRST ERA ^^ ujb & dfe tSb i& &(&£&& t^- HISTORY of the BENCH and BAR of CALIFORNIA MEN of the FIRST ERA HALL McAllister and his line. He was not the ablest in all respects, but he united more of the essential qualities of the great lawyer than any of his competitors. Their variable radiance which now and then dimmed his steady light, only served to show that the prolonged sunshine is better than flashes of lightning. The tide of his practice knew no ebb, from its first swell in the middle of the century to the end of his life in 1888, and it had an ex- ceptionally extended range. His indefatiga- ble industry in preparation, his patience in the elucidation of intricate facts, the remarka- bly thorough way in which he tried his whole case, and the well-known fact that he was, as we may express it, the lawyers' lawyer — be- ing ni'^st consulted by other attorneys and by the bench — these distinctions lifted him to the first place among the advanced few. No less a man than Reuben H. Lloyd, in the course of testimony which he was giving on the witness-stand some years before McAllis- ter's death, observed that, in the matter con- cerning which he was then being interrogated, he had taken the advice of Hall McAllister and that it was his habit to advise with him in matters affecting him (Lloyd) personally. E. D. Sawyer, who had been a District Judge, in addressing a jury in the old Twelfth District Court, April 21, 1875, took occasion to remark that he only knew of one lawyer who was equally good in all kinds of cases, and that was Hall McAllister. John Garber, who has succeeded to first place — that is, who, while he is not equally good in all kinds of cases, is yet primus inter pares by general confession — said very finely of McAllister at the latter's death : "I have good reason to know the man, for I was either with or against him in many im- portant cases, and had excellent opportunity to know and appreciate his varied accomplish- ments. He was capable of infinite labor and was always equipped for every emergency. His intellectual capabilities knew no limit. His extensive reading and broad culture prepared him to illustrate, in a pleasing manner, any subject which presented itself. He, indeed, was a man who adorned every subject he touched. He was in love with his profession, and to it he gave his entire life and energy. Both in private and professional life he was kind-hearted, affable, and a most genial and charming companion." Some enterprising dealer in that line, aware of the prime place held by McAllister in the mind and heart of the bar, issued, a year or so before the great lawyer's death, a very large engraved portrait of him, which he took around to the various law offices in San Fran- cisco for sale. The portrait is to be seen on the walls of prominent attorneys today, and formed part of the office effects of leading lawyers who died after McAllister did — Creed Haymond, for instance. The favor with which the portrait was received was such as has rarely been accorded to the likeness of a living man. Matthew Hall McAllister, the father of Hall McAllister, was born in Savannah. Ga., November 26, 1800. As he was the father, so was he the son of a distinguished lawyer. His ancestors emigrated from Scotland. Af- ter graduating from Princeton College, he prepared himself for the bar, to which he was admitted in Savannah. He there fol- lowed the profession for twenty-nine years. During the administration of John Quincy Adams he was LInited States attorney for the Southern District of Georgia. His father. 418 History of the Bench and Bar of California. Matthew McAllister, had held the same office under Washington. Judge McAllister was for many years one of the most prominent public men in the Southern Empire State. Always a strong Democrat, he . yet opposed with vigor the attempts at nullification in 1832. He participated in the fiery debates of that period, and threw all the weight of his influ- ence and example in favor of the* Union. For quite a number of years he represented Savannah in the legislature— first in the lower, later in the higher branch. In 1845 he was the Democratic nominee for Governor of Georgia, and was defeated. In 1848 he was a delegate to the Democratic Na- tional Convention which nominated General Cass for President. In 1850 he removed to California. He was then fifty years old, an age far exceeding that of the average Areo- naut of that day. His son Hall had preceded him and had become established in law prac- tice in San Francisco. Judge McAllister nrac- ticed law with great success until he went on the federal bench. He paid a visit to Georgia in 1853. He found the legislature in session and about to elect a United States senator. The Whigs predominated and prevailed, but Judge McAllister, although he had fixed his residence permanently on the Pacific, received the Democratic nomination and his full party vote for senator. In 1855 the Judge was ap- pointed by President Pierce the first United States Circuit Judge for California. His judi- cial opinions were reported in one volume by his son. Cutler. In 1862 Judge McAllister resigned his place on the bench, having, at the age of sixty-two, greatly failed in health. He died three years later. His wife survived him some ten years and died in New York city. He had pros- pered in business and left a fine estate, con- sisting chiefly of improved city real estate, embracing among other parcels the property on Montgomery street, adjoining on the north Sherman's building. His mental powers gave way before he left the bench, but up to a year or so of his resignation, he was a strong man in mind and body. To quote Mr. H. E. Highton, who wrote of him at the time of his death, "He possessed in happy combination the shrewd practical sense, the keen and analytical power, and the strong moral feeling which characterized his Scottish ancestry, and the glowing imagination and the chivalrous honor, which grow out of aristocratic systems and ripen under tropical skies. His learning was both extensive and varied; his style, whether in speaking or writing, was rich and clear, his language apt and precise. His man- ners were of the old school — so gentle and so courtly that they won for him affection and connnanded respect." In the Eighth Volume of Howard's United States Supreme Court Reports may be found the case of Kennedy vs. the Georgia State Bank, argued by Judge ]\IcAllister, and in which he overthrew the giant Webster. \n- othcr of his unfading laurels was an opinion of his while on the bench, which was for- mally adopted by the United States Supreme Court. Judge McAllister's sons were Ward McAl- lister, of New York city (of the immortal "Four Hundred"); Hall McAllister; Cutler McAllister, Hall's San Francisco law partner, who died while on a visit to Florida in 1879; Julian, a General in the United States army, who died a few years after Cutler, and Rev. F. M. McAllister, an Episcopal clergj'man, who was the first rector of the Church of the Ad- vent in San Francisco. As a lawyer. Judge McAllister long sur- vived in his son Hall, of lasting fame. His descendants are many, including the second Hall McAllister, son of the first Hall, and Elliott McAllister, son of Cutler, both now at the San Francisco bar. His mind is stamped on the jurisprudence of the State and Na- tion, and his honored name will live for gen- erations. Hall Mc.'Mlistcr was born in Georgia, in 1826. He arrived in San Francisco in June, 1849, a year before his father came, and by way of the Straits of Magellan and Valpa- raiso. 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 reso- lute purpose which if stubbornly adhered to, rarely fails to bring to the legal practi- tioner a fair measure of success. Tliat period of probation from which law- yers — even those of the brightest parts and promise — seldom find exemption, was with Hall McAllister exceptionally brief. Several favourable circumstances conspired with his native bent and energy of character to cut his probation short, and to launch him ausni- ciously into the full tide of practice. Of an honorable and talented family, courted by society, enjoying the affectionate help of a History of the Bench and Bar of California. 419 father distinguished in his own profession, anxious and able to assist and advance him; of fine person, robust health, vigorous mind and a fixed ambition, he stepped into the arena of 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 fortuit- ous circumstances ; much to paternal prompt- ings and guidance, "which nursed the tender thought to reason, and on reason build re- solve — 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 became; one of the few unchallenged leaders of a large and able bar. He never knew what it was to be poor, or without friends, although he never wielded great wealth. But even if he had set forth upon his brilliant career without the advantages of competency, friend- ship 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 distinguished his progress. He might have builded on his father's fame, but in- stead thereof he laid his own foundations, and the superstructure which he erected was entirely his own. He had a more vigorous and comprehensive legal mind than his father possessed. Mr. McAllister had 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 cor- rugations to betray the earnest study he con- centrated upon his 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 lent to him the aspect of solidity and power, but his movement of body, notably lively for a man of his stature, militated somewhat against this impression. This alertness of movement corresponded with the action of his mind; and, like the latter, never ran into haste. Thoroughness and dispatch exercised joint and harmonious control over his whole being. In the trial of a cause his manner was ad- mirable. He was cautious, but caution never fettered him. He was rapid, but was never carried beyond his object. One of his most noticeable habits was to take down with his own hand all the evidence of witnesses. He was eternally writing. St. Augustine said of that "most learned of the Romans," Mar- cus 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 olie could find time to read all that he had composed. It may be said of McAllister, that he read so much, it seems hardly possible he could write much ; yet it would engross the time of almost any person to read, not what he composed, but what he wrote down in court. What he wrote would hardly prove as entertaining as the critical, philosophical, and other treatises of Varro, for what dropped from his pen was 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, al- though the shorthand reporter is doing the same task more accurately, is very advanta- geous to an advocate. And it loses half its benefit when done by proxy, for the evidence is then less impressed upon the advocate's mind. This duty is generally shirked, be- cause it is hard work, and is unjustly regarded as merely manual. Successful lawyers usu- ally turn aside from the clerical details of their business. In McAllister this habit of which we speak was in keeping with his gen- eral industry. McAllister sat usually facing the jury, and rarely rising from his chair. His table was covered with books and papers, and a boy was generally waiting to make fresh drafts upon his well-stocked library. The court- room was for him a place of earnest work. From the beginning to the end of the trial, he was writing, reading, questioning, object- ing, argumg, appealing. The observer was constantly impressed with his industry and watchfulness. P>ut from the court-room he turned playfully away and would walk along the corridors of the City Hall, and even on the streets, with his arm on some brother law- yer's shoulder. In eliciting testimony, McAllister exhausted the information without trying the patience of the witness. He never bored or insulted. He never played the tyrant over a timid wit- ness, and never led a rash one to his un- doing, just for the love of the thing. He never figured in any of the discreditable scenes History of the Bench and Bar of California. in which lawyers and witnesses grapple in wordy combat. He was never fined by a court. McAllister, like every thoroughly trained lawyer, was politic, and therefore polite — alike courteous to court, counsel, jury and witness. To coun- sel as.sociated with him in the trial of a cause he was uniformly deferential, but would not play second fiddle. He always led his side. He was 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 sneered at a proposition, and never stated one dog- matically. He met the tyro with his hesi- tating step, and the veteran with his measured stride with the same air of respect. With all his dispatch, it was yet in the full- ness of time, and, with a clear comprehen- sion of his cause, that McAllister rose to address his familiar and favorite auditory — the jury. He was now in the house of his friends, and in speech and manner he showed that he was conscious of it. Having omitted nothing as regarded introduction of evidence, so now he left nothing unsaid which the jury should hear. They had vvitnessed his pa- tient management, his shrewd generalship, the evidences of his careful preparation, and if, when he rose before them, they had not al- ready recognized the fact that he knew his case to the utmost details, he soon convinced them of it. They appreciated his address to their reason, admired his methodical arrange- ment of facts, and found entertainment in his argument. Without betraying any effort to subject them to any personal influence; al- ways respectful without being patronizing; ever earnest, but never inflamed; fluent, yet not verbose ; easy in manner, yet a stranger to dramatic effect, he challenged respect fo*- himself, even when he failed to elicit sympa- thy for his cause. His voice and physique, as well as the cast of his mind, were more suited to the argumentative than the pathetic style. .-\t times, however, in capital cases, he approached eloquence, drawing on the classics to give point and polish to his ap- peals. In quoting Shakespeare and the Bible he was quite happy. His elocutionary powers belonged neither to the first nor the second order. Nothing could be said for his gestic- ulation ; his metaphors were few and not striking, and, as to apostrophe, that perfec*: flower of Baker's oratory, he rarely called 't to his aid. We said this bar leader had no specialty. Great lawyers are often distinguished for specialties; too often the public assign them to specialties, when, in truth, they have none. McAllister never suffered from this popular pi'opensity. Not only had he no specialty, but the fact was ackncnvledged by all. Whether his case involved land titles, inher- itance, patent rights, private franchises, per- sonal liberty, human life, or constitutional law. he was equal to the occasion. .\s a pleader — a writer of pleadings — Mc- .Allister was careful and correct, evincing an intimate acquaintance with English forms and precedents. Although he probably did more work than any member of the California bar, there was no one who took things easier, or whom work hurt less. He owed this in a great measure to his powers of endurance — a splendid auxiliary to close mental applica- tion — and to his habit of investigating and methodizing at the same time. He was full of life and energy, had naturally a high tem- per, which he kept under good control, seemed to have schooled himself to be slow to anger, and was not combative. He had 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 censured, because he generally turned it to account. It was at least better than punning, and an advocate perchance often indulges in pleasantry of some kind to cause a laugh and give surcease 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 was more pleising to the car when spoken l)y its author in court than it would be to the eye if in ])rint. At any rate, we shall not print any of it. Occasionally he deserved punishment for his temerity in this line — or rather in these lines. In his argument in the case of the Hibernia Savings and Loan Society vs. Mahoney ct al.. Fourth District Court, 1877, he let go some verses on which issue was joined by the opposing counsel, Judge Delos Lake. 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 was an unfailing vein of humor, not noteworthy History of the Bench and Bar of California. 421 for its richness, yd not to be omitted in this sketch. On 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 col- league 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 ^he court, but that Mr. AlcAllister had covered the ground so thoroughly that he deemed it un- necessary to add anything. A certain lame lawyer had a certain lame client. The two resembled each other strong- ly in their awkward gait and clumsy locomo- tion. The litigant, while looking for his at- torney on the street one day, hobbled up to McAllister and asked : "Have you seen Lawyer — going along this way?" "I never saw him going along any other way," was the reply. Among the more important of the law causes in which McAllister won renown wor- thy of especial note was that of Tompkins vs. Mahoney. tried in San Francisco in the year 1865. The plaintiff, a lawyer, recovered judgment against the defendant for some $30,000, including interest for legal services rendered during a period of several years. McAllister was his attorney, and his excel- lent 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. (TItc courts had no official stenographers at that time.) Mr. McAllister married a lady of rare ac- complishments, a daughter of Samuel Her- man, notary public, and raised a large fam- ily. His widow survived him a few years. He owned a city residence, a beautiful sum- mer home in Marin county, and was in com- fortable circumstances. Reference to his fam- ily 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. Cutler McAllister, was clerk, and Hall McAllister himself the chief prac- titioner. It happened one day, that as Mc- Allister was presenting an ex parte motion, no one beinf in the courtroom 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 courtroom door, and, after a hasty glance, was about to withdraw, when the judge said: "Come in, Mr. Papy." The latter bowed his acknowledgement to the bench, and said : "Your Honor will pardon me; I hate to in- trude into a family meeting." The punctilious Mr. Papy then silently stole away, and the argument was resumed. McAllister's name ran through eighty vol- umes of Supreme Court Reports, beginning with the case of Payne vs. Pacific Mail Steamship Company, in Volume i. He ac- quired a competency, but he continued his work to the last, as might one who felt the sharp spur of want. McAllister broke down suddenly in body and mind, in the summer of 1888. The physi- cians said the trouble was impoverishment of blood, caused by overwork. He passed several months in Europe, returning in No- vember, and died at his country residence near San Rafael, on December 2, 1888, aged 62 years. He was buried with the rites of the Episcopal church. He left a widow, as al- ready stated, and three daughters, one of whom was the second wife of Hon. Frank G. New- lands, and a son. The latter is the present Hall McAlli.ster, of San Francisco, who is fol- lowing his father's profession. STEPHEN J. FIELD. We come to the most distinguished name in the judicial history of the State, and one that is illustrious in the magistracy of the nation. There were always those who did not like the man. but never one who refused to bow to the pre-eminent lawyer and imperial judge. The Rev. David D. Field, an eminent New England divine, who died about the year 1862, lived to see five sons attain enviable distinction. These were David Dudley Field, the groat bar leader of New York, Cyrus West Field, who brought Europe and Ameri- ca to speaking terms through the electric cur- rent ; Jonathan Field, once president of the Massachusetts State senate; Stephen Johnson Field, the jurist, and Henry Martyn Field, who, like his father, reached eminence in the pulpit. 422 History of the Bench and Bar of California. "One o'er another rose their heads in tiers. Steps for their father's honorable years." The stock is Puritan. Stephen J. Field was born in Haddam, Connecticut, November 4, 1816. His grand- fathers on both sides were American army officers in the revolution. Rev. Dr. Field removed from Connecticut to Massachusetts and settled at Stockbridge, when his son Stephen was but three years old. Ten years later, Stephen accepted an in- vitation from Rev. Mr. Brewer and wife, missionaries to the Levant, to go with them to the scene of their future labors. Mrs. Brewer was his sister, and her invitation being empha- sized by the advice of his father, and his eldest brother, he sailed with the missionary couple December 10, 1829. and arrived at Smyrna February 5, 1830. He was abroad two and a half years, passing his time at Smyrna, Athens and other famous cities which had survived buried empires, visiting also the islands of the Grecian Archipelago. He acquired the modern Greek, and a fair knowledge of the French, Italian and Turkish tongues. His brother, David, had advised him to this course with a view to seeking a chair in an American university as professor of Oriental Languages and Literature. He was in Smyrna when the city was visited by a fearful plague in 1831. Having been thrown in contact while abroad with people of many religious creeds and faiths, all of which presented to his eye evi- dences of sincerity in belief, as well as of humanity and true devotion, the b.oy returned home with his hold upon Puritanism entirely loosened. He had been taught, for so his parents thoroughly believed, that the New England Puritans had the only true religion. He now concluded that there was other food for the soul, and ever afterwards hi.s early conclusion being strengthened by mature re- flection, he showed a lofty tolerance in re- ligious matters. In tracing his career and noting the exceptional activity, courage and persistence which marked it, it would seen. proper to call him a greater man, if not a greater lawyer, than his eminent elder brother. He struggled against greater disadvantages, he overcame more stupendous obstacles, he accomplished more difficult undertakings, he rose to a more enduring fame. Entering Williams College in 1833, he wc. the highest honors, delivering the Greek ora- tion in the junior exhibition, and the valedic- tory, upon his graduation in 1837. I" the fol- lowing spring he became a law student m his brother David's office in New York ci:v He was admitted to practice in 1841, the period of his study in law having been broken for a time by his service as a teacher in the Al- bany Female Academy. As soon as admittca to the bar his brother received him as a part- ner, and they had a cordial business and brotherly union of seven years. When the Mexican War broke out, David Dudley Field strongly advised his young brother to go to California. He, David, had made himself familiar with the geography and even the political history of the Pacific coast, and had contributed to the Democra'ic Review two articles on the "Oregon Ques- tion." The young lawyer determined to first make a visit to Europe. So, dissolving the partner- ship, he crossed the Atlantic in June, 1848. In December of that year, in Paris, he heard of the discovery of gold in California. This country had come under the American flag. He at once concluded to visit it, but remained in Europe, sightseeing, for about nine months, then returned to New York. It was now Oc- tober I, 1849, and six weeks later he sailed for California by way of Panama. He ar- rived in San Francisco December 28, 1849, just in time to be a pioneer. He got into lodgings with three dollars left him, two of which he was compelled to part with the ne.xi morning for the cheapest breakfast he ciuM order. He was buoj-ant in spirit, although out of money, and in a new land, far distant from his home and kindred. The day v/as beau- tiful—in very midwinter — the air was exhil- arating, everybody was active and hapi)y, and the common salutation was "What a glorious country !" Passing along Clay street, when near Kearny, he noticed a sign in very large letters, "Jonathan D. Stevenson. Gold dust Bought and Sold Here." "Hello, here is good luck !" he thought. His brother David had given him a promissory note which he held against Colonel Stevenson for $350, stating that he understood the Colonel had become rich in California, and if this were true, to ask him to pay the note. Taking the pi'xe of paper from his otherwise empty pocket, he entered the place where gold dust was bough!. and sold. He was recognized and cordially received. In talking about the "glorious country," the Colonel let fall the welcome History of the Bench and Bar of California. 423 information that he had made $200,000. The note was presented and paid with interest in full— $440. San Francisco was given a short tritl. In less than three weeks from the time he landed here the joung lawyer took the stcunl-oat for Sacramento. His objective point was the new town of Vernon, a little further up the river at which point he had been advised to enter upon an active practice of law by Simmons, Hutchinson & Co., of San Fran- cisco, to which firm he had brought letters of introduction. Finding that Vernon consisted of a single shanty surrounded by a vast ex- panse of water — the country was then flooded — he pushed on to Nye's Ranch, near the mouth of the Feather river. There he found a bustling camp of several hundred men, and concluded to pitch his tent. An auctioneer was selling town lots. The lawyer asked him the price. The lots were 80x160. the same as in Sacramento, and the uniform price was $250. "Suppose a man puts his name down and afterwards does not want the lots?" asked the lawyer. "Oh, you need not take them if you don't want them," replied the auctioneer. "I took him at his word," said the newcomer afterwards ; "I wrote my name down for sixty-five lots aggregating in price of $16,250." He had only about $20 left of what Colonel Stevenson had paid him, but he became the lion of the hour, the capitalist of the com- munity. Tlie proprietors of the land who had just bought it from General Sutter, but who had not yet got their deed, showed the newly arrived capitalist marked attention. Two of their number were French gentlemen, and finding their new acquaintance spoke their tongue, they became the more appre- ciative. From the beauty and hcalthfulness of the spot, and its adniiraljlc location, our far- seeing friend was satisfied as to its future. Messieurs Covillaud and Sicard, the two French gentlemen named, became his friends and clients, and he wrote for them the first deed or law paper ever recorded afifecting prop- erty in Marysville. General Sutter, then lin- ing at Hock Farm, six miles distant, signed this deed, which conveyed several leagues of land. So the attorney went to work at once. On the next day after his arrival, in the evening, a public meeting was held to decide if a town government should be established. It was c'ecided in the affirmative after a speech by Field, predicting a brilliant future for the place. Who named Marysville? On January 18, 1S50, the people of the new town, then called by some Nye's Ranch, by others Yubaville, established a town government electing an Ayuntamiento, or Town Council, first and second alcaldes and a marshal. Judge Field was elected first alcalde by a majority of nine votes. It was urged against him that he was a newcomer. He had been there only three days, while his opponent had been there nine days. In the evening • another public meeting was held to hear the result of the election. It was resolved at that gathering to give the new town a name. The compet- ing cognomens were "Yubafield," Yubaville," and "Circumdoro." But at the last moment an old man arose, and said that there was an American lady in the place, the wife of one of the proprietors (the French gentle- man, Covillaud). Her name was Mary, and in her honor he moved that the place be called "Marysville." This was at once agreed to amid hearty cheers, and with not one dissent- ing voice. Mrs. Covillaud was one of the survivors of the Donner party, who endured such frightful sufferings in the Sierra Ne- vada mountains, in the winter of 1846-7. As the constitution of the State had gone into effect, although the State had not been admitted into the Union, to make his calling and election sure, the new alcalde obtained from Governor Burnett a commission as jus- tice of the peace, the two offices amounting to one and the same thing in jurisdiction, ex- cept that the duties of the justice of the peace were accurately defined. A few weeks after his arrival at Marysville, he was very glad that he had put his name down on that auctioneer's list for sixty-five lots — and he was very glad that the auctioneer had not treated it as a joke. Within ninety days he had sold over $25,000 worth of real estate, and had a good majority of his lots left. Fie had brought from San Francisco frame and zinc houses, which yielded a rental of over $1000 a month. His fees as alcalde were large, and at one time, not to mention his real estate, he had $14,000 in gold dust of his own in his safe. About that time he employed as a clerk George C. Gor- 'ham, then 17 years of age. He found Gor- liam a f|uick youth and a trusty agent, and was always his faithful friend. Leaving the office of alcalde, Judge Field 424 History of the Bench and Bar of Colifoniia. had just entered actively upon the practice of the law when he was nominated for the assembly. He had had a rupture with the District Judge, William R. Turner, which has no parallel in controversies between bench and bar, and which will be noticed hereafter. As a candidate for the legislature he openly announced that his purpose was to reform the judiciary, and to have Judge Tur- ner removed from the bench of that district. Judge Turner, in return, threatened to drive the would-be lawmaker into the Yuba river. Yuba county then embraced, in addition to its present area, the present counties of Ne- vada and Sierra. Many interesting incidents of this animated canvass are preserved. At one place in the mines he arrived on the scene just in time to save an innocent man from being hanged. He treated the l}-nch jury many times to the best wines and cigars that could be got, and appealed to their hearts while tickling their appetities. He was elected by a large majority. Im- mediately he commenced the preparation of a bill relating to the judiciary. The legis- lature met at San Jose the first Monday in January, 1851. Judge Field was appointed on the judiciary committee. To this commit- tee he submitted his bill, and they approving it, it became a law. Its essential features have ever since been preserved, and are now to be found in our Code of Civil Procedure. Be- sides creating eleven judicial districts, it de- fined the jurisdiction and powers of every judicial officer in the State, from Supreme Judge down to Justice of the Peace. He also introduced a bill dividing the county of Trin- ity, and creating that of Klamath, and an- other bill dividing the county of Yuba and cre- ating that of Nevada, and not forgetting his old enemy (and the sequel will show what cause he had to be mindful of him), he se- cured the formation of a new Eighth Dis- trict out of Trinity and Klamath, and had the counties of Yuba, Sutter and Nevada united into a Tenth Judicial District. So Jud^e Turner,, as Judge of the Eighth Judicial Dis- trict, had to change his territorial base, and go to Trinity and Klamath, then sparsely settled counties. Not yet feeling that he had got even with his old foe, he presented petitions from many of the leading citizens of Yuba county, praying Turner's impeachment and removal from office, on the grounds of in- competency, ignorance, and arbitrary and tyrannical conduct. As an impeachment trial would necessitate a considerable extension of the session, and the members generally de- sired to get home, the proposed impeachment was indefinitely postponed by a majority of three votes. Judge Field not voting. Judge Field introduced and secured the passage of the California Practice Act, now known as the Code of Civil Procedure. He adapted it from the New York Code of that name. We are in like manner indebted to him for our Criminal Practice, nO'W our Penal Code. In this work he altered and recon- structed over three hundred sections of the New York codes and added over one hundred new sections. Of course our Civil Procedure and Penal Codes have been greatly amplified since they left his hands in the shape of the Civil and Criminal Practice Acts. The state of Ne- vada and the surrounding territories adopted these laws regulating civil and criminal pro- cedure before they were translated and elab- orated into our own codes. As an illustration of the re:spect which Judge Field exacted from his co-legislators, on account of his clearness of judgment and constant industry, it may be stated that the Criminal Practice Act, as introduced by him, was never read before the legislature. The rules were suspended and the bill read by its title and passed. It narrowly escaped hos- tile action from the Governor. It comprised over six hundred sections, and on the last day of the session the Governor told Judge Field that he could not sign it without reading it, and it was too late for him to do that. The Judge urged him to sign it, representing that it was essential to the harmonious working of laws already passed. "You say it is all right?" asked the Governor. "Yes," answered the Judge, and the signature was given which made it a law. Our legislator also secured the passage of an act making it impossible for judges to disbar attorneys without a hearing. This was, no doubt, suggested to him by his war with Judge Turner. He also drew the char- ters of the cities of Marysville, Nevada and Monterey. His other legislative work was important. When the legislature adjourned, he was a ruined man in a pecuniary sense. He could hardly pay his passage. After his expulsion from the bar, by Judge Turner, he conmicnced speculation, and sowing to the winds he reaped whirlwinds. When he re- turned to the city which he had practically founded he had only a few cents in his pocket, and he was minus all his property, Stephen J, Field Hisforv of the Bench and Bar of California. 425 and in debt to the depth of $18,000. No old Californian will be surprised at this. It was in keeping with the average Californian's ex- perience. "My dear Mr. Peck," he said to the proprietor of the United States Hotel (whom he could have bought out twenty times over, one year before), "will you trust me for two weeks' board?" Whether from innate nobility or motives of business policy. Peck answered, "Yes," and he added, "for as long as vou want." And Peck sent a man and had the law-maker's trunks brought from the steam- boat, and made him at home. Now, in a little room, with a pine table and a cane-bottom sofa, and the bills which had just passed the legislature and the stat- utes of the previous session for a library, thus humbly, thus bravely, did he take again to his profession. There was an unfurnished loft over his office in which he slept. The cot he slept upon he bought on credit. On this he spread a pair of blankets. His pillow was his valise. His washstand was a chair without a back. He managed to secure a tin basin, a pail, a piece of soap, a toothbrush, a comb, and a few towels. He was his own hewer of wood and drawer of water. He did not use that rude furniture long, nor did he pass many nights in the loft. Soon the luxury of fine apartments for both office and lodg- ings was attained. Within two and a half years he paid all his indebtedness, which, with interest, exceeded $38,000. His great suc- cess drew him closer to his profession, and he resisted every suggestion or invitation to run for office. Marysville had grown into an attractive and busy city of twelve or fifteen thousand people, and being at the head of navigation, was the emporium whence a vast country drew its supplies. It had an able bar. Judge Field practiced in Marysville, and also in all Northern California. For some years he had the most lucrative practice in the State, outside of San Francisco. We have examined the California Reports, and find that during the period of about seven years — between his leaving the legislature and his going on our Supreme bench — he had more causes in our Supreme Court than any other lawyer. And his success on appeal wa-; almost phenomenal. He was successful in nine out of every ten cases. Wherever t)ie Reports show Stephen J. Field was for the appellant, the judgment was reversel, and where he was for the respondent, the ,U'!g- ment was affirmed — that is. that was the rule, and the exceptions were few. William R. Turner, who had just been ap- pointed Judge of the District Court of the Eighth Judicial District^ which embraced Yuba county, opened his court in Marysville, on the first Monday in June, 1850. Among those who waited upon him a few days before to pay their respects, was Stephen J. Fields who handed him his latest copies of the New- York Evening Post, which journal was then, the organ of the Freesoil party. From this fact Judge Turner, who had lived in TexaSj and was a pro-slavery man of narrow mind and violent temper, inferred that his North- ern visitor was an Abolitionist, althoug^li he- was in error on this as on many other point.'* about him — all of which he found out in time. The New York lawyer was about to revisit his old home, leaving his affairs in a very prosperous state, when his friend, General Sutter, insisted that he should postpone his departure long enough to be his counsel and assist his attorney in the case of Cameron vs. Sutter, just instituted in Judge Turner's court. The request was complied with, and during the first week of court the case of Cameron vs. Sutter was called. Judge Field's associate made a preliminary motion, which Judge Turner denied. Jesse O. Goodwin, who sat near, passed Judge Field the Practice Act, and pointed to a section bearing on the question. Judge Field arose, and asked per- mission to read the section. Judge Turner replied : "The court knows the law ; the mind of the court is made up; take your seat, sir." Judge Field was amazed, but said, re- spectfully, that he excepted and would appeal. Judge Turner then, in loud and angry tones, said : "Fine that gentleman $200." Judge Field's next was, "Very well," or "Very well, sir." Judge Turner immediately added, "I fine him $300, and commit him to the custody of the sheriff for eight hours." Another quiet "Very well," came from Judge Field. Then Judge Turner exclaimed excitedly, "I fine him four hundred dollars and commit him twelve hours." Judge Field then remarked that it was his right by statute to appeal from any order of his honor, and that it was no contempt of court to give notice of an excep- tion or an appeal, and he asked the members of the bar present if it could be so regarded. Judge Field had better tell the rest himself: "Upon my statement, he flew into a perfect rage, and in a loud and boisterous tone cried out, 'I fine him five hundred dollars and com- mit him twenty-four hours — forty-eight hours — turn him out of court — subpoena a posse — 426 History of the Bench and Bar of California. subpoena me.' I left the court-room. The at- torney in the case accompanied me, and we were followed bv the deputy sheriff. After going a few steps we met the coroner, to whom the deputy sheriff transferred me. . . . Tlie attorney, who was much exasperated at the conduct of the Judge, said to me, as we met the coroner, 'Never mind what the Judge does; he is an old fool.' I replied, 'Yes, he is an old jackass.' This was said in an ordinary conversational tone, but a Cap- tain Powers, with whom Turner boarded, happened to hear it, and running to the court- house and opening the door, he hallooed out : 'Judge Turner ! Oh. Judge Turner ! Judge Field says you are an old jackass.' A shout followed, and the Judge seemed puzzled whether or not he should send an officer after me or punish his excitable friend for repeating my language. Toward evening the deputy sheriff met the Judge, who asked him what he had done with me. The deputy an- swered that I had gone to my office, and was still there. The Judge said: "Go and put him under lock and key, and if necessary put him in irons.' The deputy came to me and said : 'The Judge has sent me to put you under lock and key; let me turn the key upon you in your own office.' " Asking the deputy to show his warrant of commitment, and finding that he had none, the lawyer became indignant, and told the officer to go away. Saying, "I will lock the door anyway," the officer did so, and retired. A writ of habeas corpus was immediately sued out and forthwith executed, and that same evening the County Judge, Henry P. Haun, afterwards United States Senator, promptly discharged the lawyer, there being no war- rant in the officer's hands. While Judge Field was treating a crowd of excited friends that night — which cost him $290 — Judge Tur- ner came on the scene, on fire with fury, and applied vile and obscene epithets to the County Judge, saying that he would teach "that fellow" that he was an inferior Judge. The wrathful magistrate was hung in effigy that night on the public plaza. He said this was Judge Field's work — which was another mistake. The story of this extraordinary "contempt" case is a long one, but we can reduce it and not spoil it. On the day when the court next opened, Judge Turner made an order that Judge Field be expelled from the bar for suing out the habeas corpus; also expelling Samuel B. Mulford and Jesse O. Goodwin for being witnesses on the return — on the pre- tense that they had, all three, "villified the court and denounced its proceedings." He also fined the County Judge $50 and ordered him imprisoned for forty-eight hours for dis- charging Judge Field from arrest. The County Judge paid his fine and left the court- room, and the sheriff took Judge Field into custody. The latter immediately sued out an- other writ of habeas corpus, and while before Judge Haun and his associates of the Court of Sessions, arguing for his discharge, the sheriff entered and declared his intention of taking Judge Field from the court-room and Judge Haun from the bench, and putting both in confinement in pursuance of Judge Tur- ner's order. There was an extraordinary scene in court. Judge Haun told the sheriff that the Court of Sessions was holding its regular term; that he (the sheriff) was violating the law, and that the court must not be disturbed in its proceedings. The sheriff returned to Judge Turner and reported the situation. Judge Turner ordered a posse to be summoned, asking those in the courtroom to serve on it, and directed the sheriff to take Judge Haun and Lawyer Field by force, and, if necessary, to put Judge Haun in irons — to handcuff him. The sheriff and his posse soon rushed into the Court of Sessions, forced the attorney from the court-room, and were just about to give the unexampled exhibition of tearing a magistrate from his seat, when Judge Haun stepped to a closet, and drew from it a navy revolver, cocked it, and leveling it at the sheriff, declared he would kill him if he ap- proached nearer. He also fined the sheriff $200 for contempt of court, appointed a tem- porary bailiff, and directed the latter to eject the sheriff and his party from the chamber. The new bailiff acted promptly, the bystand- ers responded to his call, and the intruders withdrew. Judge Haun then laid his revolver on his desk, inquired if there was any further business, and there being none, he adjourned the court. To further curtail the account, it may be stated that before the Supreme Court, Judge Field was successful as usual. That tribunal entirely undid Judge Turner's work. His orders imposing fines were reversed, and Messrs. Field, Goodwin and Mulford were restored to the bar. Judge Turner refused to obey the mandate of the Supreme Court for the restoration of the attorneys. He issued an address to the public, to which the three attorneys and five others replied, the reply History, of the Bcncli and Bar of California. 427 declaring that Judge Turner was a man of depraved tastes, of vulgar habits, of an un- governable temper, reckless of truth when his passions were excited, and grossly incompe- tent. Judge Turner then threatened to publicly insult Judge Field, and then to shoot him, if he resented it. Judge Field repaired to San Francisco and took counsel of Judge Nathan- iel Bennett. The latter gave some advice, which, if acted upon, would hardly have tended to promote Judge Turner's well-being. Being unused to arms, and reared to do with- out them. Judge Field did not like to "heel" himself, to use the word of that day, but he was told and he believed that his life de- pended on it, and accordingly he purchased a pair of revolvers, had a sack coat made with pockets in which the weapons could lie and be discharged without taking them out, and by practice made himself a good shot. Then he sent by Ira A. Eaton, a message to Judge Turner, which was substantially, "I desire no trouble with you, but I will not avoid you ; I have heard of your threats, and if you attack me or come at me in a threatening manner, I will kill you." They often met, in many places, but no words passed. Judge Field, when he saw his foe, always grasped his pocketed arms, and kept a sharp lookout. He said he felt that he was in great danger, but that after a time there was a sort of fascina- tion in this feeling. He did not think that Judge Turner would have shot him down de- liberately, when sober, but that, when in drink, and in presence of lawless crowds who heard his threats, it would have taken but little to urge him on. All this happened, be it remembered, six or seven months before the legislature, through Judge Field's influence, removed Judge Turner to the snows of Trinity. In the meantime the disbarred attorney was ruined in business. He was not permitted to practice in the District Court, despite the Supreme Court mandate, and if he had been, his relations with the court were such as to keep clients away from him. Why did not the Supreme Court compel obedience to its mandate? It happened thus: TTie disbarred attorneys having been admit- ted to the Supreme Court, which entitled them to practice in all the courts of the State, Judge Turner made an order for them to show cause why they should not be again expelled. They showed cause enough, but it was not received, and a second order of expulsion was entered. From his very posi- tion he was enabled to keep the attorneys lively, and for a time to ruin their business. Another mandate was obtained from the Su- preme Court for their reinstatement. They then asked for Judge Turner's punishment, but the Supreme Court declined to punish him, on the ground that he had recognized the first mandate by making a second order of expulsion, after an order to show cause, etc. (Very nice point.) Judge Turner, after being removed to Trin- ity, served out his term, and at its close was a candidate for re-election. His opnonent being declared elected by one vote, he con- tested, and it went- to the Supreme Court. Judge Field was then on the latter bench, but he did not participate in the hearing or de- cision, and Justices Terry and Baldwin gave the office to Turner. The latter then sent a friend to Judge Field to inquire if he would be reconciled. Judge Field said no; that the world was wide enough for both; and each would go his own way. TTie next day Judge Turner stationed himself where Judge Field had to pass to go into court, and as his old adversary approached, he called out: "I am now at peace with all the world ; if there is any man who feels that I have done him an injury, I am ready to make amends." Judge Field looked at him a moment, then passed on. The same thing occurred the next day. That was the last time the two Judges ever met. Judge Turner served out his term, and was again elected. In 1867, Mr. Charles Westmoreland, member of the assembly from Trinity, offered resolutions looking to Judge Turner's impeachment for high crimes and misdemeanors. Mr. Westmoreland made a speech severely arraigning the Judge for his many acts of tyranny. The resolutions were adopted, but before the appointed committee took action. Judge Turner resigned, and not long afterwards died. At the end of this extraordinary and pro- tracted struggle. Judge Field found that his triumph had cost him his fortune and his busi- ness. Yet his reputation as a lawyer had in- creased, and as soon as it was seen that he had fair play at court, his practice again be- came large. Judge Turner being moved to another district, and a new (Tenth) district being created, comprising Yuba. Nevada, and Sutter counties, the Governor commissioned Gordon N. Mott. Judge of the new court. Judge Mott was the personal and political friend of Judge Field, who urged him for the 428 History of the Bench and Bar of California. place. He died in 1887, at quite an advanced age, in San Francisco. In the fall of 1857, Judge Field was elected, as the Democratic nominee, a Justice of the State Supreme Court. In September, 1857, immediately after his election, and about three months before his term was to commence, Hugh C. Murray, Chief Justice, died, and Peter H. Burnett, Associate Justice, was ap- pointed Chief Justice. To the vacancy thus caused by Judge Murray's death and Judge Burnett's advancement. Judge Field was ap- pointed by Governor J. Neely Johnson, an old Whig and Know Nothing opponent of his. He accepted and took his seat on the Supreme bench, October 13, 1857," nearly three months earlier than he had anticipated. The opinions of this jurist, delivered while on our State Supreme bench, are compre- hended in fifteen volumes of the California Reports — Nos. 7 to 21 inclusive. They had been commented on and approved by Mr. Emory Washburn, professor of law in Har- vard University, (see American Law Register for June, 1862) ; by Judge Dillon, a leading and universally approved American law writer; by Professor John Norton Pomeroy, who ably sketched Judge Field's career as legislator and jurist; by 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 Id his conclusions," and by many other authori- ties on legal science. Said Professor Pome- roy: "I was told by a gentleman, who has for many vears been employed by a leading law 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 uni- versally 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, be ing grounded in immutable principle, they have all the strength and majesty of author- ity. 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 on May 20th, following. He was assigned to the Tenth circuit, then comprising California and Oregon, Nevada being after- wards included. 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 to "Hon. Stephen J. Field, Washington, 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 newspaper. On the other side were the words in print : "From Geo. H. John- ston'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 ap- peared 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 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 carriage way, under the steps leading to the Senate Cham- ber, and threw it against the wall, shielding themselves behind one of the columns. The blow exposed the contents. Twelve pistol cartridges lay imbedded in glue, a bundle of sensitive friction matches, a strip of sand- paper, and some fulminating powder were ingeniously placed — the whole contrivance be- ing so arranged that opening the lid would ig- nite the matches, which in turn would explode the cartridges. It was sent to the War De- partment, and General Dyer, chief of ord- nance, had it examined. A detailed descrip- tion of it was returned to General Dyer by Major Benton. This murderous instrument was evidently History of the Bench and Bar of California. 429 sent to the Judge by some man in San Fran- cisco, who had been disappointed by some de- cision. On the inside of the lid was pasted a slip cut from a San Francisco paper, o' October 31, 1864, stating that Judge Field had on the day previous decided a certain case, but this availed nothing, so far as the dis- covery of the bloody-minded inventor wai 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, ^"d his widow, who was Miss Sue V. Swearingen, is still living. 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 eventful life, and was distrib- uted to his intimate friends, only thirty copies having been printed. A year later, an octavo volume of 464 pages was given to the profes- sion by Chauncey F. Black and Samuel B. Smith, of New York city. It was a compihi- tion 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 pre- ceded by an introductory sketch by John 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. Judge Field's judicial connection with the Sharon cases, and with the celebrated con- tempt case of David S. Terry, is set forth ii- this History in the article on that litiga- tion. Judge Field and Judge Terry had been on the California Supreme bench together for two years (1857-59). After the killing of Terry, his slayer, David Neagle, was arrested at Stockton, upon a warrant issued there by a justice of the peace, before whom Mrs. Terry had filed a com- plaint charging both Neagle and Judge Field with the murder of her husband. On habeas corpus proceedings before the United States Circuit Judge Sawyer and United States Dis- trict Judge Sabin, Neagle was discharged from custody on September 16, 1889. Judge Field, later in the same year, presented Neagle with a gold watch and chain. In discharging Neagle, the court said : "When the deceased left his seat, some thirty feet distant, walked stealthily down the passage in the rear of Justice Field and dealt the unsuspecting jurist two preliminary blows, doubtless by way of reminding him that the time for vengeance had at last come. Justice Field was already at the traditional 'wall' of the law. He was sitting quietly at a table, back to the assailant, eating his breakfast, the side opposite being occupied by other pas- sengers, some of whom were women, simi- larly engaged. When, in a dazed condition, he awoke to the reality of the situation and saw the stalwart form of the deceased with arm drawn back for a final mortal blow, there was no time to get under or over the table, had the law, under any circumstances, re- quired such an act for his justification. Nea- gle could not seek a 'wall' to justify his action without abandoning his charge to cer- tain death. When, therefore, he sprang to his feet and cried, 'Stop! I am an officer,' and saw the powerful arm of the deceased drawn back for the final deadly stroke, in- stantly change its direction to his left breast, apparently seeking his favorite weapon, the knife, and at the same time heard the half- suppressed, disappointed growl of recognition of the man, who, with the aid of half a dozen others, had finally succeeded in disarming him of his knife at the court-room a year before, the supreme moment had come, or at least, with abundant reason, he thought so, and fired the fatal shot. The testimony all concurs in showing this to be the state of facts, and the almost universal consensus of public opinion of the United States seems to justify the act. On that occasion a second, or two seconds, signified, at least, two valu- able lives, and a reasonable degree of pru- dence would justify a shot one or two sec- onds too soon rather than a fraction of a second too late. Upon our minds the evi- dence leaves no doubt whatever that the hom- icide was fully justified by the circumstances. Neagle on the scene of action, facing the party making a murderous assault, knowing by personal experience his physical reputa- tion, his lifelong habit of carrying arms, his readiness to use them, and his angry, murder- ous threats, and seeing his demoniac looks, his stealthy assault upon Justice Field from behind, and, remembering the sacred trust committed to his charge — Neagle, in these try- ing circumstances, was the party to deter- mine when the supreme moment for action had come, and if he honestly acted with reasonable judgment and discretion, the law justifies him, even if he erred. But who will have the courage to stand up in the presence 430 History of the Bench and Bar of California. of the facts developed by the testimony of this case, and say that he fired the smallest fraction of a second too soon? "In our judgment, he acted, under the try- ing circumstances surrounding him, in good faith, and with consummate courage, judg- ment, and discretion. The homicide was, in our opinion, clearly justifiable in law, and in the forum of sound, practical common sense commendable. This being so. and the act having been done ... in pursuance of a law of the United States, as we have al- ready seen, it cannot be an offense against, and he is not amenable to. the law of the State." The decision of the Circuit Court discharg- ing Neagle from the custody of the sheriff of San Joaquin county was affirmed by the Supreme Court of the United States on the 14th of April, 1890. Justice Field did not sit at the hearing of the case, and took no part in its decision, nor did he remain in the conference-room with his Associate Justices at any time while it was being considered, or on the bench when it was delivered. The opinion of the court was delivered by Justice Miller. Dissenting opinions were filed by Chief Justice Fuller, and Justice Lamar. Justice Miller's opinion concludes as follows: "We have thus given, in this case, a most attentive consideration to all the questions of law and fact which we have thought to be properly involved in it. We have felt it to be our duty to examine into the facts with a completeness justified by the importance of the case, as well as from the duty imposed upon us by the statutes, which we think re- quires of us to place ourselves, as far as pos- sible, in the place of the Circuit Court and to examine the testimony and the arguments in it. and to dispose of the party as law and justice require. "Tlie result at which we have arrived upon this examination is, that in the protection of the person and the life of Mr. Justice Field. while in the discharge of his official duties. Neagle was authorized to resist the attack of Terry upon him; that Neagle was correct in the belief that without prompt action on his part the assault of Terry upon the Judge would have ended in the death of the latter; that such being his well-founded belief, he was justified in taking the life of Terry, as the only means of preventing the death of the man who was intended to be his victim ; that in taking the life of Terry, under the cir- cumstances, he was acting under the authority of the law of the United States, and was justified in doing so; and that he is not liable to answer in the courts of California on. ac- count of his part in that transaction. "We therefore affirm the judgment of the Circuit Court authorizing his discharge from the custody of the sheriff." Judge Field was also arrested under the same warrant in his chambers in the Federal building, San Francisco, by Sheriff Cunning- ham, of Stockton. The sheriff had given the Judge a day's notice, and a petition for a writ of habeas corpus was presented to the other Federal Judges before named. The writ was issued, and was heard on August 22d. The United States district attorney appeared for Judge Field, and associated with him were Richard T. Mesick, Samuel M. Wilson and William F. Herrin. The matter was submit- ted with leave to file briefs before August 27th. Before that date the Governor of the State wrote to the attorney-general as fol- lows : "Executive Department, "State of California. "S.\CRAMENTO, AugUSt 21, 1889. "Hon. G. A. Johnson, "Attorney-General. Sacramento : "Dear Sir: TTie arrest of Hon. Stephen J. Field, a Justice of the Supreme Court of the United States, on the unsupported oath of a woman, who, on the very day the oath was taken, and often before, threatened his life, will be a burning disgrace to the State unless disavowed. I therefore urge upon you the propriety of at once instructing the district attorney of San Joaquin county to dismiss the unwarranted proceedings against him. "The question of the jurisdiction of the State court in the case of the deputy United States marshal. Neagle. is one for argument. The unprecedented indignity on Justice Field does not admit of argument. "Yours truly. "R. W. W.\TERMAN, "Governor." On the 2r)th of .Vugiist, upon the motion of the district attorney and the filing of the at- torney-general's letter, the charge against Jus- tice Field was dismissed by the justice of the peace who had issued the warrant against him. The dismissal of this charge released him from the sheriff's claim to his custody, an-i the habeas corpus proceeding in his behalf fell to the ground. On the 27th, the day ap- pointed for the further hearing, the sheriff announced that in compliance with the order of the magistrate he released Justice Field from custody, whereupon the case of habeas, corpus was dismissed. History of the Bench and Bar of California. 431 Among the expressions of public and pri- vate opinion conveyed to Judge Field on the subject of this tragedy, was one from the great Democratic leader and statesman, • Thomas F. Bayard, of Delaware, of which the following is an extract: "Passing over the arguments that may be wrought out of the verbiage of our dual con- stitution of government, the robust and es- sential principle must be recognized and pro- claimed^that the inherent powers of every government which are sutticient to authorize and enforce the judgments of its courts are equally and at all times and in all places suffi- cient to protect the individual Judge who fear- lessly and conscientiously, in the discharge of his duty, pronounces those judgments. "The case, my dear friend, is not yours alone ; it is equally mine, and that of every other American. A principle so vital to society and to the body politic, was never more danger- ously and wickedly assailed than by the as- sault of Terry and his wife upon you for your just and honorable performance of your duty as a magistrate." On the day after Judge Terry's death, the following proceedings occurred in the Su- preme Court of the State : Late in the afternoon, just after the coun- sel in a certain action had concluded their argument, and before the next cause on the calendar was called, James L. Crittenden, Esq., who was accompanied by W. T. Bag- gett, Esq., arose to address the court. He said : "Your honors, it has become my pain- ful and sad duty to formally announce to the court the death of a former Chief Jus- tice — " Chief Justice Beatty : "Mr. Crittenden, I think that is a matter which should be post- poned until the court has had a consultation about it." The court then, without leaving the bench, held a whispered consultation, and Mr. Crit- tenden then went on to say: "I was doing this at the request of several friends of the de- ceased. It has been customary for the court to take formal action prior to the funeral. In this instance, I understand the funeral is to take place tomorrow." Chief Justice Beatty: "Mr. Crittenden, the members of the court wish to consult with each other on this matter, and you had better postpone your motion of formal announce- ment until tomorrow morning." Mr. Crittenden and Mr. Baggett then with- drew from the court-room. On the following day, in the presence of a large assembly, including an unusually large attendance of attorneys, Mr. Crittenden re- newed his motion. He said : "If the court please, I desire to. renew the matter, which I began to present last .evening. As a friend — a personal friend — of the late Judge Terry, I should deem myself very cold, indeed, and very far from discharging the duty which is imposed upon that rela- tion, if I did not present the matter which I propose to present to this bench this morn- ing. I have known the gentleman to whom I have reference for over thirty years, and I desire simply now, in making this motion, to say that the friendship of so many years, and the acquaintance and intimacy existing between that gentleman and his family and myself for so long a period, require that I should at this time move this court, as a court, out of recollection for the memory of the man who presided in the Supreme Court of this State for so many years with honor, ability, character, and integrity, and, there- fore, I ask this court, out of respect for his memory, to adjourn during the day on which he is to be buried, which is today." Chief Justice Beatty said : "I regret very much that counsel should have persisted in making this formal an- nouncement, after the intimation from the court. Upon full consultation, we thought it would be better that it should not be done. The circumstances of Judge Terry's death are notorious, and under these circumstances this court had determined that it would be better to pass this matter in silence, and not to take any action upon it ; and that is the order of the court.' Judge Field in 1897, when his term on the United States Supreme bench had equaled those of John Marshall and Joseph Story (thirty-four years), resigned. He had writ- ten in that period 620 of the decisions of that court. He died, childless, at the age of eighty- three years, at Washington, D. C, of kidney disease, on the 9th day of April, 1S99. E. D. BAKER. Colonel Edward D. Baker, who was pre- eminent as a lawyer, orator and statesman, a soldier in three wars, and who fell in battle, has tnsaged the editor's pen in three inde- pendnit works already. What has been said will be suinniarized here, and something added: He was born in London, England, in i8ri. When five years old, his parents came to the 432 History of the Bench and Bar of California. United States, bringing him with them. They came to this country, loving its institutions. They were teachers, educators, and making their home in Philadephia, 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, sur- viving her distinguished son. When in the fullness of time, the latter be- came 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 statement that, on the way to the postoffice with the letter in hand, and conversing 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 shorthand, which she wrote with elegance 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 vir- tues 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 vis- ion, and that charm of speech, which later so often fascinated the people of the New West. He was then the first orator of Ilinois. 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 184Q. he went to Congress again, a Whig from a Democratic district. In 1851 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 Fran- cisco, and until he departed for Oregon, eight years later, he practiced law 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-Lecompton or Douglas candidates were Joseph C. McKibben of Sierra, and Judge Booker of Stockton. The Republican candi- dates were Colonel Baker and P. H. Sibley. California then was strongly Democratic. By a tacit understanding between the Republic.ins and Douglas Democrats those two elements coalesced on candidates 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 shorthand reporters to ac- company 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. Henry Edgerton declared to us that he never heard so grand a speech. It may be found in full in the Sacramento Union of August 2.3, 1859. It was in this campaign that we 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. Colonel Baker lost this fight. As he after- wards publicly declared, his hopes and his heart were crushed. But in less than one year from the time of that Waterloo, he was a Sen- ator of the United States. Oregon was his constituenc}'. Baker was very engaging on the lecture plat- form. Few, if any, of his efforts in that line were reported with any attempt at fullness. Indeed, before 1859, shorthand 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 with a noble trib- ute to Truth. At the Burns' centennial, 1859, he was very happy. Another fine effort was his oration at the dedication of Lone ^lountain cemetery (where his body rests). May 30, 1854. Starr King, in his touching address, six years later over Ba- ker's open grave, made this allusion: "We have borne him now to the home of the dead. History of the Bench and Bar of California. 433 to the cemetery which, after fit services of prayer, he devoted in a tender and thrilling speech, to its hallowed purposes." A thoughtful and polished production of Baker was his oration at Broderick's funeral, September i8, 1859. It contains his stirring protest against duelling. Never was man so eloquently mourned as Broderick. Edgerton, we have seen, considered the "Forest Hill" speech as Baker's best. That is the opinion of Lieutenant Governor Nefif, and many lead- ing men. The multitude believe the Broderick oration was the masterpiece of all. Examina- tion and comparison will demonstrate that the reply to Benjamin, in the United States Sen- ate on January 2, 1861, was Baker's greatest and best-sustained efifort. He was freely and often interrupted, but stood forth the prince of debaters, and pos- sessed of great and varied knowledge. But for beauty of expression and pleasing effect his Atlantic Cable address of September, 1858, eclipsed all others. His eloquence is there transporting, as poetry and music. Baker suffered a severe penalty for his brilliant de- fense in the celebrated trial of Charles Cora. 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 marshal, and his trial for the crime commenced January 8, 1856. He employed Colonel Baker to defend him, but public opin- ion 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 l)c put on trial the second time the v\"'i- lance committee hanged him. But Baker may be quoted in his own vindica- tion. In defense of Cora before the jury he took occasion to say : "The legal profession is, above all others, fearless of public opinion, candid and sympa- thetic. It has ever stood up against the tyr- anny of monarchs on the one hand, and the tyranny of public opinion on the other. .Xnd 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 Inmi- blc, 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 in San Francisco (where now stands the Halle'ck 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 tri- umphs. One year before, he had left the State —defeated in a tremendous struggle, but hope- ful 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 report- ed and widely distributed. Delivered witb- out notes, it was full of gems that will snarkle 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 my age shall march. And, for one, I am not ashamed of freedom. I know her power; I rejoice in her majestv; 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, rcgathering 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!" The natural grace, the manly animation of the speaker, the way he suited the action to tin- 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, seenud to see him standing, unconquerable, the especial champion of freedom, who, no 434 Hislorx of the Bench and Bar of California. more to be bound to the stake, was to exult in majesty and triumph forever. The daily papers, reporting the occasion, told of one indi- vidual in the audience, who, in the exuber- ance of his enthusiasm, leaped on the stage and cheered as he waved the flag of freedom before the throng. During his short term in the Senate he de- livered 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 Sam- uel 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 command, rule and lead men. I feel that I can lead men any- where." 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 2ist day of October, 1861. Baker's delivery was rapid, his voice melo- dious, 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 extra- ordinary. His countenance and bearing and his gray locks recalled the picture of Thor- waldsen, of whom it was said that .when he moved in the midst of a crowd, it would sep- arate as if it felt the presence of a superior being. His disposition was the perfection of amiability. In his most heated forensic and political contests be 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 the 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, for forty years there had been heard the promise of a l)ublication of Baker's speeches, lectures, etc., in book form. It was reserved to the Editor of this History to issue these masterpieces in a pocket edition in 1899, under the title of "Elo- quence of the Far West." There had been issued a "Sketch of the Life and Public Serv- ices of Edward D. Baker," by Joseph Wallace, (Springfield, 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 ; 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 reply to Benjamin, the reply to Breckinridge, the American Theatre speech, the defense of Cora, are all given in full with prefatory statements, in the little book, "Elo- quence of the Far West." 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 cemetery where his mortality lies has long ceased to be the city of the dead and been added to the domain of throbbing life. Baker's wife, who survived him, lies by his side in Lone Mountain. His two sons died without issue. Two widowed daughters are living in Seattle, Washington. In our book of Baker's Masterpieces (1899) we left it in doubt as to who was the author of a fine reference to the orator — on page 292 thereof. We have found that it was written by Calvin B. McDonald. He has been dead many years. He had been editorially con- nected with many newspapers, and wrote with much strength and beauty. The passage re- ferred to was in an article devoted to reminis- cences of Baker, which appeared in the San Francisco Post. It is as follows : "Some years ago the people of San Francisco chased away an eloquent old man, who took refuge in the mountains of Nevada. He was afterwards brought back from the sacrificial heights of Stone River, a mangled, speechless l)rophet of freedom, and fifty thousand people laid him tenderly on the altitudes of Lone Mountain, within hearing of the eternal dirges of the ocean — while his glorious words echoed and still echo in the valleys and mountains from the fountains of the San Joaquin to the sources of the Columbia : 'Years, long years ago, I took my stand by freedom, and where History of the Bench and Bar of California. 435 in youth my feet were planted, there my man- hood and my age shall march." " The reader will be pleased with a more lengthy extract from the same article by Mc- Donald, which we now give: Colonel Baker went to Downieville in 1858, to try a great water case. He received a fee of $13,000, and I do not think he opened a law book or thought much about his argument .un- til he found himself before the bar. There were two trials of the suit. During his first speech. Baker had carried away the jury, in a brilliant apostrophe to Water, which would have made the fortune of a temperance lec- turer. At this remote time I am unable to say what relevancy the properties of sparkling water had to the title of the water-ditch in dis- pute, but the great advocate easily made the jury see. On the second triaK when Baker's turn for argument came, he arose, and was just coming again to the old fountains and cataracts, when the opposing counsel. Colonel R. H. Taylor, begged permission of the court to just suggest that since Colonel Baker's former happy speech, a number of honest min- ers had got into the headwaters of the stream and had riled it up, so that it did not sparkle a bit, and the former magnificent description of the upper premises had no longer any proper application. The court and spectators laughed ; Baker was badly done up, and came verv near making a failure ; lost his case, and wouldn't speak to Taylor for a long time there- after. During;- the presidential campaign of 1856, when the Republican party made its first ap- pearance, there was a very rough mining set- tlement of some five hundred people not far from Downieville, and only one Republican was known to exist among them. All the rest were Democrats, and most of them of a very rude character. Baker was stumping the State for the new party, and determined to go to this settlement, and make a speech, although he had been strongly advised that it would be danger- ous to do so. The mighty sorcerer was never afraid of the forbidding faces of men. and he knew how to wake the latent divinity in the savagest of human souls. He accordingly went; and not without some misgivings, I ac- companied him. When we were entering the village, the crowd about the "Bascom Grocery" of the place hauled down the American flag in token of hostility, but offered no further per- sonal indignity. Baker did not seem to ob- serve the flag episode, and after dark he mounted a carpenter's bench in front of one of the vilest grog-shops of civilization, and commenced. The rough audience had heard of him, and they wanted to hear him go. Not a word was spoken in the crowd : not a sign of applause or disapproval ; and never did orator address an audience so un.sympathetic and stolid. Baker kent on a half hour or so with- out any perceptible effect: and then, seomins: to be gathering all his energies for one gigantic blow to split the obdurate rock, he began to pace along the bench, pouring out wave after wave, cumulative, majestic, and overwhelming. At length something like a tremor ran through the silent throng, and I could see them move uneasily under the spell of the enchanter. Some of them had belonged to Riley's regi- ment in the Mexican War. Baker had found that out, and looking up at the naked flag- staff, he referred to his own part on the battle- fields of Mexico, and then, for. full ten minutes, and, as it appeared, without a period in the structure of his speech, he rolled down a tor- rent of impassioned eloquence upon his trans- fi.xed audience, "Like the dashing, silver-plashing Surges of San Salvador," The orator standing in the majesty of his power, piling it up higher and higher, until some one in the crowd gave a sort of agonizing yell, as though unable to stand it any longer — and the stubborn rock was cleft for the outflow of the waters. The men yelled for I don't know how long, and made a rush upon the frail platform ; Baker and his bench were overthrown, and when the orator had regained his stand, it was several minutes before he could be heard, and go on with his triumphant speech. I have never seen a crowd behave so frantically from similar emotions. It was another scene like D'Arcy IMagee's description of St. Patrick's conquest of the Irish on the Hill of Tara, and there, as of old, the Irish heart, though hid in a rough tabernacle, showed its inability to resist the influence of true elo- quence, and ever after, when Baker passed that way, the Irish miners cheered him at their work. ******* We saw him no more — nothing but the man- gled, soulless clay that came back from Ball's Bluff. And now, when the landward winds come in from the boundless ocean, to grieve and sob among the nobler monuments that have been reared to the ashes of lesser men, the Spirit of that Freedom which he wor'^hiped with all the fervor of a great soul, droops be- S'ide a grave almost unmarked by gratitude and love, and seems to utter the pathetic interroga- tory of the dying warrior of the Allcghanies, "Who is there to mourn for Logan ?" HUGH C MURR.VV. The youngest Justice and the youngest Chief Justice who ever sat upon our Supreme bench was Hugh C. Murray. Born in St. Louis, Missouri, April 22. 1825, of Scotch extraction, he was reared at .Alton. Illinois, where he re- ceived 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 in- fantry. -Xfter that war be returned home and was admitted to the bar. but at once set out 4315 History of the Bench and Bar of California. for California. Going to Panama by steamer, and 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 first 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 Gover- nor 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 suc- cessor by the Democrats. 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 a^e of twenty-eight, having become an Associate Justice two years earlier. Murray possessed a patient and powerful mind, capable of the severest investigation. Judge W. T. Wallace, who was attorney-general when Murray died, declared 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 irre- parable. He was, withal, a dignified and im- pressive speaker on the stump. In his day candidates for the bench were not exempted from the custom of active, open electioneering in behalf of their party and themselves. We 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, which was 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 expiring agony." This sounded very well, indeed, and the agony part was given in a way that evoked loud laughter. But we 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. J JOHN R. McCONNELL. John R. McConnell was distinguished above all his professional brethren in the new West for breadth of reading and his fund of varied lore. He was born in Kentucky in 1826 — in the same year with McAllister, Freelon, Prin- gle and Patterson. His ancestry was, on the paternal side Scotch-Irish, and on the mother's side English. He was the twelfth of thirteen children. When he was seven years old his father removed to Illinois and settled on a farm near Jacksonville. Losing his father the following year, and his mother two years later, he returned to Kentucky and lived in the fam- ily of a brother-in-law, in Bourbon county, un- til he became of age. In Illinois and Kentucky he attended several good schools, but his edu- cation was principally directed and his char- acter molded by Professor Vaughn, who after- wards moved to Cincinnati and became a cele- brated mathematician. Under this professor, McConnell attained rare excellence in mathe- matics, metaphysics and the classics. It was said of him that "in the higher mathematics especially he excelled, and nothing seemed to afford him more pleasure than a dash into the mysteries of curvilinear and conic sections." Arrangements were being made looking to his appointment as cadet at West Point, when he concluded that he was not physically capaci- tated for a soldier's life, and turned to the law, the study of which he commenced under John Martin, a prominent lawyer of Bourbon county, Kentucky, in 1844. It is probable that no stu- dent ever took up the study with greater enthusiasm, or pursued it with more loyalty and zeal. He read almost incessantly, and be- ing a man of fine mind, he attained a profound knowledge of the science. Indeed, he re- History of the Bench and Bar of California. 437 mained a student through life, and his mind was overfed. For a short period he was at the Transylvania University, where he had the counsel of Judges Wooley, Robertson and Thomas A. Marshall. Ill-health prevented him from completing his studies at this institution. At the age of twenty-one he commenced the practice of law in Illinois. Two years later he removed to Mississippi, locating at Natchez. There, while struggling to secure business, he took up Justinian's Institutes, and the whole boay of civil law, to which he gave close and severe study. He was a peripatetic legal philosopher. His transitions suggested perpetual motion. Not only was he a traveler through life, sojourning at different points in five different States, but in his local habitations, in home and office, lie A'as on his feet almost continually. He had a passion for locomotion. A. A. Sargent has spoken of this predilection of McConnell. "He was very studious," said Mr. Sargent, "and fond of old and curious law. He used to wear a bare place in the carpet along the whole length of his office, where he paced up and down reading books. His methods were al- ways honorable and aboveboard, and despite his overindulgence in stimulants, he was held in general esteem." Of course, such a man could not escape the "gold fever." He reached California in 1849, coming overland, one of his companions being that daring martial spirit. Colonel Ned San- ders, brother-in-law of Haggin and Tevis, who was with Walker in Nicaragua, and who was killed in the Confederate army. McConnell settled at Placerville, and went to mining. He found already on the ground Frank M. Pixley, John Heard, and many others who since be- came widely known in law or letters. There was not a law book in the county. "The dis- cussions and the decisions equally," said Cax- ton, "must have been rather crude and ill- digested, but we have reason to believe that the germ of the entire mining jurisprudence of California sprang from those early delibera- tions." Early in 1851 McConnell removed to Nevada City in the richest mineral region of the state, and opened a law office. His accomplishments as a lawyer soon won him the respect of an able bar and secured him a valuable practice. In the estimation of many he led (he bar of Northern California. "It is not going too far to assert," said Caxton, "that the briefs and arguments of John R. McConnell before the Supreme Court did more toward building up the mining law of this state than the labors of any other counselor upon this coast. To an inexhaustible fund of learning he added indomitable industry and a perception quick, sure and intuitive. Methodical almost to for- mality, he drilled his arguments into the form of logical sequence that in most cases amounted to mathematical demonstration. But his mem- ory was, perhaps, the most remarkable trait of a most remarkable mind. It seemed to be ab- solutely infallible. Piled up in the deep reser- voirs of his capacious intellect, he called forth these argosies of wealth at a moment's notice, and launched them upon the tide of learning with an abandon that produced amazement." With his vast reading and retentive memory it is not strange that McConnell failed to ac- quire a reputation for originality. His mind was continually burdened with the thoughts of others. He was constantly quoting or referring to great men — in argument and in conversa- tiion. He took great delight in oral discourse and in displaying the stores of his lettered wealth. Like a happy song bird jumping glee- fully from bough to bough, he would in con- verse pass over the whole tree of human knowl- edge. As he loved to talk, so he demanded patient listeners, and the latter always had their reward. The impression of manv that McConnell was but a book worm or a liter- ary parrot, is not well founded — he read slow- ly, digested what he took in, and possessed great logical power. His voice was poor and his bearing had little grace. In argument he rarely attempted ornament — bottom facts were his objective point always. Neither in "shape" nor "gesture" was he "proudly eminent." He convinced by the direct action of his brain. McConnell had considerable experience in public life. He was one of the earliest dis- trict attorneys of Nevada county, and in 1853 was elected attorney general of the State. Many years later he represented Los Angeles county in the lower branch of the legislature. In 1861 he ran for Governor as the candidate of the southern wing of the Democracy, and was defeated by Leland Stanford; and in 1864 he was, with Judge E. W. McKinstry and Judge W. C. Wallace, an unsuccessful candi- date for the supreme bench of the State of Nevada. In the gubernatorial contest in this State in 1861, the total vote was 119,730 — Stanford (Republican) receiving 56,035, McConnell 438 History of the Bench and Bar of California. (Administration Democrat) 32,750, Conness (Douglass Democrat). 30,944. During his term as district attorney, one Miller had assaulted a clergyman, and receiv- ing an unexpected thrashing for his temerity had the reverend man arrested for battery. McConnell, learning the facts, declined to pros- ecute. The justice before whom the preacher was brought — Doughterty, "Old Zeke" — di- rected the sheriff to call McConnell. "Some- body has got to prosecute this man," said the justice, "or I'll let him go." McConnell ap- peared and made a quasi prosecution. Tlie case being submitted, the justice said: "I think this was a fair fight. Miller commenced it and got a good licking. It was good for him. The prisoner is discharged." Air. Sargent tells this anecdote of IMcCon- nell's early professional life:^ He had a client, Dr. W., whose litigation was often of an important character. On a trip below the doctor had borrowed $1,000 of one of the supreme judges. After judgment in the district court in a certain case which was about to be appealed to the Supreme Court, McCon- nell said to Dr. W., "I wish you would pay that $1,000; we have got to get to the Su- preme Court." "Mac," said the doctor, "you don't know anything about human nature. If I were to pay that money, the Judge would have no further interest in me." McConnell in 1853 defended one George W. Hall, tried on a charge of murder. The al- leged victims were Chinamen, and the ac- cused was convicted on Chinese testimony. McConnell made a point as to the admissi- bility of this kind of evidence. The State law then declared that "No Indian or negro shall be allowed to testify as a witness in any action in which a white person is a party." McCon- nell took the position that the word "Indian," in the sense intended by the legislature, applied io the whole Mongolian race, and therefore Chinamen were not competent to testify against white persons. This view was sustained by Chief Justice Murray in a very interesting opinion, in which Judge Heydenfeldt con- curred, and from which Judge Wells dissented. McConnell was attorney general during the years 1854-55. During this period he made a visit to the East and South, leaving the office in charge of Hon. William M. Stewart. Mr. Stewart was his law partner, and had pre- pared himself for the profession in his private •office. McConnell removed to Virginia City, Ne- vada, in 1863, at the height of the excitement over the Comstock lode. He was there about two years, during which period we had a brief partnership with him, and was daily enter- tained by his learned talk. He then adhered to the habit, which Sargent observed in early days, of walking while reading. His thinking was done on his feet. One of his peculiarities was to ignore all blank forms used in plead- ings and conveyancing. He despised all books of forms, and the volume entitled "Every Man His Own Lawyer," filled him with loathing. He prepared his papers with the statutes and the reports before him, and it was a keen law- yer who could find in them a flaw. But he at- tracted a very limited clientage in Virginia City. He was not often seen at the bar, and was not connected with any of the great mining cases which brought extensive fame and fortune to his old partner, Stewart. He was then little more than a shadow of his former self, having become a slave to opium. Returning to California, McConnell resided and practiced at different times in Nevada, Sacramento and Los Angeles. He was three times married — first, to Miss Rebecca Cross, of Nevada City, California ; second, to Miss Ann Eliza Moore, of Fayette county, Ken- tucky ; lastly, to Miss Sallie B. Darby, eldest daughter of Dr. J. Curtis Darby, of Lexin"-- ton county, Kentucky, who survived him. He died in Denver, Colorado, in 1879, leaving a small estate. C. TEMPLE EMMET. Christopher Temple Emmet was born in New York city in 1823. He was the son of Robert Emmet, who was a distinguished law- yer of that city and a Judge of the Common Pleas ; and was a grand-nephew of the great Irish patriot, whose name his father bore. Mr. Emmet was educated at Flushing, Long Island, in the school of Bishop Ha%yks, who was the father of W. W. Hawks, once a State senator from San Francisco, a man of brilliant parts, being a polished and animated public speaker, who died of consumption in Honolulu, many years ago. Hon. Ogden Hoffman was among Mr. Emmet's schoolmates. From Flushing he went to the University of Virginia, chiefly to study medicine under his uncle. John P. Emmet, a medical professor there. Having graduated as a physician and surgeon, he re- turned to New York city, but finding medical practice distasteful to him, he studied law in History of the Bench and Bar of California. 439 his father's office. Shortly after being admit- ted as a counsellor at the bar, having three \ears earlier been admitted as an attorney, he started for California in a sailing vessel. His cousin, John Thomas Emmet, his brother, and Herman Le Roy, were with him. They suf- fered shipwreck, and were detained at Rio de Janeiro six months. His cousin and brother returned to New York. C. Temple Emmet commenced law practice in San Francisco in 1849. He became counsel for some English capitalists, who went into contracts for leasing and operating mines on ;i large scale, with costly machinery, near Grass Valley. Tliere were several companies of these moneyed Englishmen, at the head of one of them being Sir Henry Hunter. They died out by degrees in a few years. Mr. Emmet defended, before Alcalde Geary and a jury, the first man ever legally tried here for murder, having been appointed by Geary to that duty. The man was hung. Among those with whom Mr. Emmet practiced law in partnership, were Charles T. Botts and Alex- ander Campbell. He was one of the origina- tors of the old French Bank, and for a time was the real manager thereof, although not named as such. In 1867 he left the bar with a fortune of a million dollars, and went into the California & Oregon railway project, in- augurated by Ben Holladay. In that interest he made several visits to Washington city. That enterprise stripped him of his fortune. Meanwhile he had married, late in life, at New Rochelle, N. Y., a Miss Temple, a rela- tive. The lady survived him, with five daugh- ters and a son. Mr. Emmet belonged strictly to the conser- vative type of character. This is said simply to state his class. Of course, both radicals and conservatives are essential to the wealth and welfare of the state and society. His con- servatism even entered into his dress — he clung to his old-style English shoe and the other pe- culiarities of attire of earlier days and older lands, refusing to sacrifice his ideas of com- fort to fashion. He was one of those who live "with their faces turned nobly to the past." An instance of his great will power is known to the few who were his close friends. In the early years of the State he was a high liver, but did not visit bar-rooms — he used to love his wine, cigars and cards in the company of men of strong purse and parts, the monarchs of our bar and exchequer. At cards he met great losses. Once, having made a "big win- ning," he threw cards away forever. After his marriage, he eschewed liquor in every shape, except when an honest physician prescribed it. and smoked very little. He declared that the most important lesson that could be impressed on a child's mind was the necessity of rigid .self-denial. He practiced it always, and illus- trated its fruits. In 1873 Mr. Emmet resumed law practice in San Francisco, and soon o-athered a valu- able business, becoming attorney for leading banks and capitalists and the British consul. In law business he was usually a counsellor, and kept to his chambers. He avoided politics, had few intimates, was reserved and sedate. He was no flatterer or simperer, and could not be amused with nonsense. He understood his business thoroughly, was really a master of his science; painstaking; had good judgment, and was an invaluable adviser. He shrank from the noise and glimmer of public trials and public life. Emmet, as a speaker, was cool, cogent, logical; he touched no pyrotech- nics; his expression was severely chaste; he was at his ease with Greek, Latin, French and Spanish, and was generally an accomplished scholar. A few months before his last illness began, he moved into his new homestead near San Rafael, his grounds comprising sixty acres. Fond of fresh air, he was an athlete in physi- cal exercises. In person he was large and finely built, with blue eyes, light complexion, light hair, iron-gray whiskers, and English in appearance and style of dress, as well as in tastes. He had more domestic animals and servants about his house than almost any other man in the State. Fidelity to his profession and friends, gentleness to his dependents, and devotion to his family, marked his life. He was a man of generous soul and good example. He died while on a visit to the East in Feb- ruary, 1884. His remains were brought back by his family and interred at his home in -Marin county. EUGENE CASSERLY. Eugene Casserly was born in the county of Westmeath, Ireland, in 1822. His family was a branch of the O'Connors, and was once known as the O'Connor Casserlys from a marked personal characteristic in one of his progenitors. His father and grandfather were school teachers. The latter was a leader in the rebellion of 1798. His participation in that 440 History of the Bench and Bar of California. fruitless struggle ruined him in fortune, and nearly cost him his life. Eugene Casserly came to the United States at the age of two years, with his father and mother. The father, Patrick Sarsfield Cas- serly, was a true Irishman. Landing in New York, he went straight from ship to court- room and declared his intention to become a citizen of the United States, leaving the mat- ter of lodgings to be attended to afterward. Patrick Sarsfield Casserly was a scholar. His classical attainments were great, and his in- telligence of a superior order. He opened, in New York city, the "Chrestomathic Institute." Many of the pupils of this school are now scattered over California. The elder Cas- serly was "like classic Hallam, much renowned for Greek." He introduced Eugene to the noble tongue at four years of age. He was a severe man and punished refractory scholars with delightful sang froid. It is told of him that when he found an offense had been com- mitted and was not able to discover the culprit, he would impose upon Eugene vicarious pun- ishment. The son, like the father, became an excellent classical scholar. At nineteen he aided his father in the preparation of "Jacob's Greek Reader," a standard text-book. He aided in the conduct of the school until he attained his twentieth year, when he left home and entered for himself upon life's battle. His promising qualities had attracted the at- tention of Dr. Hughes, then a bishop, after- wards Catholic archbishop of the State of New York. In that reverend man he found a friend and adviser. He found the same in Charles O'Conor. He had studied law and had been admitted to practice in 1844, but turned to the press for a time. He soon became editor of the Free- man's Journal, and a contributor to several pa- pers in New York, Boston and Washineton. One of the journals for which he wrote was the famous old Democratic Review. Who published it? Henry G. Langley, afterwards the compiler of the San Francisco "Directory." Mr. Casserly had just determined to give his whole attention to his "jealous mistress," the law, when the California gold fever broke out. He had studied law in the office of John Bigelow. During this brief practice at the New York bar, Mr. Casserly was elected to the place of corporation counsel, or what we call here city attorney. This was a very profitable and responsible position, and Mr. Casserly was called to fill it at the age of twenty-seven. At this age he became the legal adviser of our greatest city. Mr. Casserly arrived in California in August, 1850. A few months later (December S, 1850), he formed a journalistic partnership with Mr. Benjamin R. Buckalew, and started the Pub- lic Balance, a daily paper, under the firm name of Casserly & Co. This partnership soon dis- solved — in truth, the two partners quarreled. And Mr. Casserly, on January 18, 1851, com- menced the publication of the True Balance. He soon resolved to abandon journalism for- ever, and to renew legal practice in earnest. For thirty years thereafter he followed his profession continuously, and with extraordi- nary success. On May i, 1851, the legislature elected Mr. Casserly State printer. The then incumbent of the office was Mr. George K. Fitch, after- wards of the San Francisco Bulletin. Mr. Fitch refused to vacate the office, and litiga- tion followed. The case w^ent to the Supreme Court, and is reported in full in the first vol- ume of California Reports. One of the ablest briefs in all the reports is there to be found, written by Mr. Casserly, who secured the place to which he had been elected. In December, 1867, Mr. Casserly was elected a United States Senator from California, for the term of si.x years from March 4, 1869. In the fall of 1872, having served about two- thirds of his six years' term, he resigned his seat in the Senate. It should have been stated that when the Democratic party divided at the outbreak of th? Civil War, Mr. Casserly was one of the mosl advanced leaders of the war party. Leaving the Senate, he resumed law prac- tice in San Francisco, and continued business in a quiet way for a few years, when he re- tired permanently from political and profes- sional life. An intimate friend once described him as "a man of medium height, with a well-knit frame and a clear, deep-set. brown eye. The size and conformation of his head indicate a large and well-balanced brain. His tempera- ment is ardent, yet well restrained. His hair is prematurely white. His private life is as spotless as his public character." In 1854, at San Francisco, Mr. Casserly married the only sister of Mr. John T. Doyle. He died at .San Francisco, on the 14th day of June. 1883. His widow is still living in that History of tJie Bench and Bar of California. 441 city, and abo their son, John B. Casserly, who is an attorney-at-law and a member of the Board of Education. O. C. PRATT. O. C. Pratt was born in Ontario county, New York, on the 24th day of April, 1819. In the local public schools and academies he ac- quired much knowledge of the classics and mathematics, and was a very good English scholar at the age of seventeen. In 1837 he entered the United States Military Academy at West Point, as a cadet by an appointment of President Jackson. He remained there two years. He had but little taste for military studies, except when connected with the higher mathematics. He resigned his cadetship with a purpose of preparing himself for the bar. He read law in the office of Samuel Stevens, a bar leader of Albany, and being admitted to the Supreme Court of the State after two years' study, he began the practice at the age of twenty-one at Rochester. He formed the acquaintance there of Fletcher M. Haight, who was afterwards a United States Judge in Cali- fornia, and became his partner. He removed to Galena, 111., in 1843. There, in addition to a fine law practice, he acquired considerable reputation as a public speaker on the Demo- cratic side in the presidential campaign of 1844. In 1847 he was a member of the con- vention, which revised the constitution of Illi- nois. In the following year he accepted a com- mission under the Federal government to in- vestigate certain charges against an army of- ficer at Mann's Fort, on the Arkansas river. He went to that place, and, after reporting that the charges were not sustained, was re- quested by the government to proceed to Mex- ico, California, and Oregon, as a confidential agent of the government in certain matters. With an escort of sixteen men, he crossed the plains, having many brushes with the hostile savages, and arrived at Los An- geles as early as August, 1848. He visited San Jose and San Francisco, and proceeded to Oregon, where he assumed the office of Associate Justice of the Territorial Supreme Court, to which President Polk had appointed him. His colleagues had not yet arrived from the East, and he was thus the pioneer Judge of Oregon. Judge Pratt removed to San Francisco in June, 1856. He there formed a partnership with Alexander Campbell, who had been prom- inent at the bar in Oregon. His partnership lasted three years. He was Judge of the old Twelfth District Court for the term which expired December, 1869. Judge Pratt became a man of large wealth. The foundation for it was laid in this way, according to one of Bancroft's biographical works : During a trip from Portland to San Francisco, in company with Captain Crosby, it chanced that a discussion arose as to what would be the probable price of lumber on their arrival in the latter city. Pratt suggested that a cargo should be worth at least twenty-five dollars a thousand. "I wish you would guar- antee me that figure," replied his companion. "Well," rejoined the other, "there is no reason why I should guarantee you anything, but it seems to me — and here he gave his reasons — that lumber ought to be worth there when we arrive, fully twenty-five dollars a thousand." After some further conversation, Crosby asked whether he would purchase from him the cargo on board when laid down at San Francisco at twenty dollars a thousand. "Yes," said Judge Pratt; and thereupon a contract to that effect was drawn up and signed by both parties. On reaching her destination, the vessel was boarded by Captain Folsom and W. D. M. Howard, the former of whom, as purchasing agent for the United States government, of- fered him $250 a thousand for the cargo. It was declined, as was also a still higher offer made by Mr. Howard, and the lumber was finally sold at $400 a thousand. The Judge bought six square leagues of rich alluvial land in Butte and Colusa county, and went to farming and cattle-raising on a large scale. At the end of his term as District Judge at the close of 1869, he was one of the candidates of the Republican party for Supreme Judge, but was defeated with his party. In 1875 his vvife obtained a divorce from him in San Francisco. She asked for a division of his property. George W. Tyler was her attor- ney, and Joseph P. Hoge was attorney for Judge Pratt. Tlie latter made only a formal opposition, and Mrs. Pratt was awarded prop- erty worth $700,000. Tyler fixed his fee at $10,000, which she refused to pay. A jury awarded him this amount, and Tyler filed an enormous cost bill. Mrs. Pratt paid the judgment with costs, on the advice of Samuel M. Wilson. The parties then had three grown children. In 1877, ^^ New York city, Judge Pratt married his second wife, Mrs. L. E. Jones, of San Francisco. There was one child of this marriage, a son. The Judge was 442 History of the Bench and Bar of California. a man of very wide information, of great per- sonal and professional pride, was a most en- tertaining talker, and had a somewhat haughty carriage. He died at San Francisco, on Octo- ber 24th, i8gi, aged seventy-two years and six months. His estate was worth about one mil- lion dollars. ELISHA COOK. Elisha Cook was "a burning and a shining light" at tl:e San Francisco bar for twenty years. It has been the fortune of few men in California to win such lasting and dis- tinguished celebrity. When "The mossy marbles rest On the lips that he has pressed In their bloom ; And the names he loved to hear Have been carved for many a year On the tomb," A learned profession will still unite to keep his memory green. His argument and conduct of great cases have been preserved in imperish- able print, and will be studied and admired in remote eras. Too soon was he removed from the broad field of his triumphs. His hands were full, his children were not reared, he had not known surcease from toil, nor per- fected the plans of his life when his work was stopped. But so active was his career, so crowded with masterly performances, so re- warded by success, so marked by exhibitions of unbending will and sense of duty, that the record which he left behind was at once re- markable and unique, peculiarly worthy of study, and stretched over a most eventful pe- riod. He was born in Montgomery county, New York, in the Mohawk valley, August 7, 1823. He was one of a family of bar leaders, trained his eldest son to the law, and was another contribution by the bar of New York to that of California. His oldest brother, Eli Cook, long headed the bar of Buffalo, where he was mayor for two terms. Eli Cook also came to California in 1849, and decided to locate in San Francisco. He returned to Buffalo to settle up his business. While engaged in doing so, new business of great value rolled in upon him, which he could not refuse to ac- cept without seeming to throw away a grand opportunity. He soon found himself in- trenched in Buffalo more firmly than ever. A gentleman who saw him in New York city, on his way back to Buffalo, describes him as being nearly six feet two inches tall, of splendid presence, witty speech, and engaging manners, and a leader of men as well as of, his profession. He died there many years ^ ago, and his professional mantle happily fell upon his brother, Josiah, the fourth son, who has long had a fine practice at Buffalo. Elisha Cook was graduated from the Man- lius Academy, at which he was distinguished and complimented for his industry and alert- ness of mind. On leaving the academy he was invited by his brother Eli to Buffalo, and ad- vised to study law. He studied law in his brother's office for one year. He was then only sixteen, and conceived the idea that he was not adapted to the legal profession. After trying mercantile life a short time, he returned to his brother's office and resumed legal stud- ies. In due time he was admitted to practice, and for awhile was in partnership with Mr. Dan- iels, a rising young attorney. Judge Nathaniel Bennett was then in partnership with Eli Cook. He afterwards became a Supreme Judge in California, and Mr. Daniels won the same dig- nity in New York. When Judge Bennett re- moved to California Eli and Elisha Cook prac- ticed together for a short time under the firm name of E. & E. Cook. Judge Bennett had been in California only a few months when Elisha Cook determined to follow his example. At the age of twenty- seven, the latter left his mother and relatives and gave up a good business and flattering prospects, under the impulse of the gold fever. He arrived here early in 1850, and settled in San Francisco, where he lived and followed law practice until his death, which occurr-^-d in that city December 31st, 1871. He was a man of great professional pride and ambition, and in removing to San Francisco he aimed to win the leading place at that bar, correspond- ing to that held by his brother in Buffalo. Joseph Cook, since so prominent at the Buffalo bar, also came to San Francisco some years later, practiced in partnership with his brother Elisha for a short time, but failing health com- pelled his return East. Mr. Cook left a widow and nine children. His eldest son, Hon. Carroll Cook, is a Judge of the San Francisco Superior Court. William Hoff Cook, of the San Francisco bar, is his second son. HENRY H. BYRNE. Henry Herbert Byrne, whose period at the San Francisco bar covered the eventful year.s Hislorx uf the Bench and Bar of California. 443 1850-71, was born in New York city. His father was Irish, and his mother English. He was well educated at a French Catholic col- lege in Canada. Admitted to the bar in his native city, he removed to San Francisco at the age of twenty-six, without money or repu- tation. He soon formed a partnership with T. W. Freelon, and during all his professional life afterward was associated with that gentle- man, except when the latter was on the bench. Byrne was district attorney of San Francisco for the two terms 1851-52, 1853-54, and also the two terms, 1868-69, 1870-71. In that office he brought many distinguished rogues to jus- tice, some of whom "felt the halter draw." He won encomiums from bench, bar, the com- munity and the press. He was an able, faith- ful and diligent minister of the people. He was known only as a criminal lawyer. The most important trial in which he ap- peared was that of Mrs. Fair, charged with the murder of the prominent lawyer, A. P. Crit- tenden. He was then district attorney. The trial was opened March 2^, and closed April 26, 1871. Byrne made the closing argument for the prosecution, consuming two days, and this was published in full by Marsh & Os- bourne, the official shorthand reporters, with all the proceedings of the trial. It was cer- tainly an admirable effort, a fine exhibition of his power of invective, his unimpeded flow of speech, his subtle reasoning, the precision of his ideas and his varied learning. It is full of interest, and attractive for all classes of read- ers. His quotations were many, but not lengthy, and not unduly frequent, considering the great length of his speech. He was, how- ever, corrected several times by Mr. Cook, his chief opponent, in statements of the evidence. To give edge to his points, beauty to his pe- riods and emphasis to his conclusions, he quoted from or made allusions to Byron's "Don Juan," Pollock's "Course of Time," Byron's "Childe Harold," Lord Brougham's "Opinions on Politics, Law, Science, Education, Litera- ture," etc. "The Confessions of Rousseau," "Sappho," "The Monk" of Matthew Lewis ; "Little's Poems," Mohammed, Milton, Shakes- peare, Esculapius, Hippocrates, Locke, Jeremy Bentham, Edwards, Kant, Aristotle, Thacke- ray Dickens, Michelet's "L'Amour," Marc Antony, Cleopatra, Lord Nelson, Lady Ham- ilton, Telemachus, Diana, Caesar, Lucrezia Bor- gia, and Daniel Webster. This address abounds with beautiful periods, and striking passages, but it must not be supposed that be- cause of its ornament it was not logical. It was argumentative, forcible, convincine. In reminding the jury of their responsibility, he said: "The juror's oath is not a by-plav. It is held most solemn by all Christian commu- nities where the jury system prevails. It is that chain which binds the integrity of man to the throne of eternal justice. And when that chain is broken, conscience swings from its moorings, and society is again in a condition to resolve itself back into the original chaos out of which it was carved." In examining the testimony of the medical experts for the defense, which was to the efifect that the accused was insane, he declared : "If these theories are correct, why the mothers of posterity will produce nothing but a band of fools. I am rather inclined to think, after hearing the testimony of some of these phvsi- cians, that they have read "L'Amour" of Mich- elet, a crazy Frenchman, who, in the first in- stance, idealizes women, taking from them their blood and their brains, and then turns around- and bows down before them as an idolator. There is no practical sense in the theories ad- vanced. It is a reflection upon our mothers, upon our wives, and will send down to pos- terity a nation of fools, if these theories are correct." Alexander Campbell was associated with Byrne in this case, and made the opening argument for the prosecution. The prisoner was convicted and sentenced to be hanged, but secured a new trial, and before she was again placed at the bar Byrne had gone out of office and passed away from earth. Byrne died at San Francisco, March i, 1872. a few months after the close of his last term as district attorney, aged forty-eight years. He had no relatives in California, and no im- mediate kinsfolk anywhere. A younger brother, Lafayette M. Byrne, died before him in San Francisco. He had long enjoyed a val- uable practice, and had made some judicious investments in city real estate. His estate was appraised at $77798. It proved, before final settlement to be worth $90,000. All of this, after making a few small legacies, he be- queathed to his personal friend and brother lawyer, already well off. E. R. Carpcntier. The minor legacies were: To David Scanncll, Eli- jah Nichols, and H. H. Byrne Ciprico, a little son of George Ciprico, the barber, $1000 each, and to Mary Cross $5000. David Scannell had been sheriff in the days of the great vigilance committee. Three of Byrne's nieces— Mary E. Holcomb, Catherine F. Holcomb and Julia H. Howard, daughters of a deceased sister — came from Connecticut and contested the will 444 History of the Bench and Bar of California. on the grounds of unsoundness of mind and undue influence. They were ofifered, and ac- cepted from Mr. Carpentier $2500 in full set- tlement before trial. Excepting James King of William. David C. Broderick, General E. D. Baker, and Thomas Starr King, no man was ever buried in San Francisco amid such genuine manifes- tations of popular sorrow as was Byrne. An immense concourse of mourners attended at St. Mary's Cathedral, where Father Spreckels delivered a discourse at once impressive and ornate. Byrne had had Catholic doctrines in- stilled into his young mind, but through life after his maturity he claimed to be a free thinker, being a close reader and admirer of Darwin, Spencer, and others of that school. Byrne dwelt apart from all churches, creeds and religious forms, but as the supreme hour approached, after stoutly holding out against many friendly importunities, he permitted a visit from a Catholic clergyman, to whom he made confession. Personally, he was perhaps the most popular man who ever lived in our metropolis — more popular than Baker. Baker dazzled the multitude from an eminence ; Byrne thrilled them by actual contact. He had the faculty — not faculty, but fortune, because it was an attribute unconsciously possessed — of enlisting the afifections of those with whom he conversed. Mention his name in San Fran- cisco today, in any knot of men. and some one will say. "I knew Byrne intimately." The average man. after having two or three inter- views with him. seemed to feel that he had been admitted unreservedly to his confidence. His funeral procession embraced hundreds of the poorer classes, in humble vehicles and on foot. Byrne was short of stature, but comnactlv built, with his head set firmly nn his shoulders. His eyes and beard and hair were jet black, the latter abundant and curly. He walked with his head and shoulders thrown back, and his carriage was somewhat stiflf. One hand was invariably pocketed. He had the aspect of great physical strength and solidity. He did not look the lawyer at all. His dress was plain and in good taste. His voice was most peculiar ; it was sharp, harsh, screeching, a great impediment to his popularity as a speaker. No man with such a voice could at- tain distinction on the stump or in the lecture- room, unless endowed with abilities of the very first class as well as all the graces and magnetism of person. Yet he made the most of it. He had severely cultivated it under the ablest professors of voice culture, and it had these compensations : he never tired in speech, was never hoarse, and was always distinct. Xor did his voice steadily repel, but the audi- tor, on hearing him a second time, would gradually become accustomed to its tone, and forget its oddity. Music he had studied con aiiiorc. He J^iiciv Jiow to sing, and yet could not sing — his voice would not permit it. As to correctness of rendition, he could give you almost any popular air from any leading opera. He was quick, bright, apt at repartee, convivial, and a lover of fun. He spoke off-hand always- — that is, he never wrote out anything : but he marshaled his ideas and prepared his plans. He was a power- ful prosecutor, watchful, all-seeing, intrepid, not afraid of man or devil. His invective was scathing — it made you shudder at times. Be- fore a jury he was very rarely eclipsed. In force, animation, beauty of imagery and illus- tration, his jury addresses yield to Baker's only. While he could not stand against the silver- tongued orator before the masses, or on the stump, or in great conventions, yet did he at times burst into eloquence as lofty and impas- sioned as that of Baker himself. One day in Judge Freelon's court, in 1852 or 1853, when Byrne was district attorney. Governor Henry S. Foote demurred to an in- dictment written with Byrne's puzzling pen, on the ground that it could not be read, and did not appear to be in the English language. Judge Freelon called for Foote's demurrer, and, examining it, observed that its chirog- raphy was, if possible, more of an enigma than that of Byrne's indictment. Solomon could hardly have done better than the Judge in this perplexity. He directed each counsel to read his own pleading, which, being done, the de- murrer was overruled. If Governor Foote thought the indictment was expressed in Irish he heard Byrne perform the feat of reading it in English, with uninterrupted flow of lan- guage from beginning to end. In a half-jocular way, Byrne was in the habit of boasting that he was descended from an Irish king. He was wont to attach to him- self certain persons, who accompanied him in his pleasures at tables, etc., and whom he made his butts — whose flattery, however, was not altogether distasteful to him, but was taken as return for their entertainment. One of these was a certain well-known "Count." Lafayette Byrne said, one happy night, that he had never really believed in his descent from an Irish king until he saw that his distinguished brother History of the Bench and Bar of California. 445 kept a fool — a practice, he understood, of roy- alty in the old times. In 1854, in San Francisco. Byrne met and married Matilda Heron, whose almost faultless impersonation of Camille afterwards won her a widely extended celebrity. They married in haste, and repented at leisure, if ever a couple did. So little was known of this marriage that after Byrne's death, some eighteen years later, when Matilda Heron came from New York to contest his will, the announcement created universal surprise. Although he always ig- nored it, the marriage was a solemn fact. Col- onel Philip A. Roach was an intimate friend of Byrne both in New York and San Fran- cisco. When the actress told her story to the public in 1872, Colonel Roach made an investi- gation and found that she had been duly mar- ried to Byrne by Father McGinness, of St. Patrick's church, at San Francisco, in 18C4. The light that was thrown upon this unfortu- nate alliance came from the sentimental actress herself, in an affidavit filed by her in the Pro- bate Court, August 28, 1872, in the matter of her contest of Harry Byrne's will. There was a compromise effected between Mr. Carpentier, the executor and legatee be- for named, and Matilda Heron. Mr. Careen- tier's final account shows that Matilda Heron received $1000. The fact is. she actuall- re- ceived $5000. The Mary Cross to whom Mr. Byrne left $5000 was a young woman from Philadelphia, who learned the millinery art in the same insti- tution with Matilda Heron, through whom she became acquainted wi.th 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 pe- riods of sickness and eloom, consequent u^nn excess of conviviality, he invariably sought her house and found hospitable welcome. NATHANIEL BENNETT. Nathaniel Bennett, always recogni^^ed as one of the ablest lawyers and jurists which the state has known, and who was a justice of the Supreme Court in 1849-1851, was born at Clinton, Oneida county. New York, on the 27th day of June. 1818. , When he was three or four years old his father purchased several tracts of land of considerable extent, in Erie county. On one of these tracts he settled as a farmer, moving his family thither from Clinton. Nathaniel passed his early boyhood on this farm, and in his twelfth year was sent to Buffalo to a military school, then lately established by the celebrated Cap- tain Partridge, who had been for more than twelve years principal of West Point Acad- emy. Nathaniel was at school at Buffalo for over two years. The pupils of this school were daily subjected to regular military drill and exercise, after the fashion at West Point. From Buffalo, young Bennett was sept to the Academy at Canandaigua, under the direction of Mr. Howe, where he continued his studies for about a year. One of his schoolmates at Canandaigua was Stephen A. Douglas. After leaving the academy, young Bennett was sent to Hamilton College, where he remained one year; at the end of that time he entered Yale College. Mr. Bennett read law at Buffalo, New York, He was admitted to practice as an attorney in 1840. and as a counsellor in 1843. He prac- ticed at Buffalo from 1840 until the fall of 1842. in partnership with Eli Cook, a brother of Elisha Cook, Esq., of San Francisco. He then determined, as his health was somewhat impaired, to make a tour through the South- ern states. In 1838-9, he had traveled through Ohio, and visited many parts of Indiana and Kentucky, but had beheld no spot for which he was willing to exchange his own home — Buffalo. Up to the time of his starting upon his second and longer journey, Mr. Bennett had always been an ardent Democrat, and a great admirer of the South and Southern in- stitutions. .K radical change was soon to come over his feelings. He started on his return trip. He rode on horseback through Eastern Louisiana, through Mississippi. Geor- gia, Tennessee, Kentucky, Virginia, Penn- sylvania, and New York, to Buffalo. In re- ferring to this tour. Judge Bennett stated to the editor of this History, that it wrought a great change in his views concerning Southern institutions and the Southern country and people. Upon his return home, Mr. Bennett applied himself closely to the study and practice of his profession. When the political organiza- tion known as Barnburners first arose, under the leadership of Silas Wright, Benjamin F., Butler, Joseph White, John Van Buren. and others, Mr. Bennett embraced the principles of the new party with enthusiasm. He was a member of the celebrated Barnburners' con- vention which met at Buffalo in the sunnner 446 History of the Bench and Bar of California. of 1848. In addition to the men just named above, Charles Francis Adams, Charles Sedg- wick, Alvin Stewart, of Utica, and James W. Nye, afterwards United States senator from Nevada, were delegates to the convention, and a great many others, among whom w^ere some of the most noted men of the Demo- cratic party, who had determined to sever their connection with the latter organization, if it continued in the course which it was pur- suing. The convention nominated Martin Van Buren for the presidenc}-. The result of the election is known. Silas Wright, truly a great man, did not live to see the triumph of his principles. Although wedded to po- litical tenets repugnant to a very large ma- jority of his fellow-citizens, and dying in the effort to engraft his views upon hostile public sentiment, millions of devoted friends and magnanimous foes lamented his death, and the flag of his country drooped in melancholy appreciation of the national loss. Judge Ben- nett was one of those whose hearts were cast down by the tidings of his death, and who labored patiently and quietly for the vindi- cation of his political principles. From 1843 to the summer of 1848, Mr. Ben- nett was exclusively engaged in practicing law. Judge Bennett came to California in 1849, landing in San Francisco on June 30. He commenced his California life in digging gold on Tuolumne river, on a bar about two miles below Jacksonville, at the mouth of Wood's creek. This bar proved very rich, and being worked by a goodly number of men, yielded an immense amount of gold. Mr. Bennett was very fortunate at mining; he continued at his new occupation for about three months, when in response to the solicitations of a friend prac- ticing law at San Francisco, he determined to repair to that city, and resume the practice of his profession. Accordingly, in the fall of 1849, he returned to San Francisco, where he formed a law partnership with the gentle- man who had induced him to leave the mines. This gentleman was the Hon. John Satterlee, afterwards Judge of the Superior Court of San Francisco, one of Judge Bennett's earliest and best friends, and a member of his com- pany, but who had crossed the Isthmus in advance of the rest. Soon after the adoption of the State constitution, he was elected a State senator from San Francisco. He had been in his seat only a few days when he was elected by the legislature one of the Associate Justices of the Supreme Court, being chosen for the longest term, six years. During his brief senatorial career, and immediately there- after, he virtually directed ithe determination of an important question then agitating the mind of the legal fraternity. A peti.tion signed by many practicing members of the San Fran- cisco bar, had been submitted to the legisla- ture, praying that that body would retain "in its substantial elements, the system of the Civil Law." For Judge Bennett's con- nection with this subject, see the article en- titled, "Adoption of the Common Law." Judge Bennett continued on the Supreme Bench for about two years, when he resigned. his salary being insufficient to support him in comfort. The nominal salary of a Supreme Judge was ten thousand dollars per annum, payable quarterly ; but soon after the organ- ization of the State government, the scrip of the State rapidly declined, as might have been expected. In October, 1850, the glad tidings came slowly over the waters, that California had , become a sovereign State in the federal sis- terhood. The enthusiastic citizens of San Francisco celebrated the event with great pomp and ceremony. Judge Bennett was se- lected to deliver the oration. His effort on that occasion was printed in full in the col- umns of the Alta California, and other news- papers of the city. It is remembered with affectionate admiration by the surviving pion- eers of the State, and is treasured among the archives in the county recorder's office of San Francisco. It became a favorite piece for declamation in our schools. In 1852-3, Judge Bennett was absent from the State for eighteen months, on a visit to the Eastern States. Upon returning, he re- sumed the practice of 'law. He devoted him- self closely to his profession, and paid but little attention to politics until the formation of the Republican party. He was present and took part in the first Republican meeting held in San Francisco ; and was a delegate to the first Republican State Convention held at Sac- ramento, being elected president of that body. He was nominated for Judge of the Supreme Court on the first Republican State ticket voted for in California, when Hon. Edward Stanly was the Republican candidate for Governor. Being defeated, with the remainder of the Republican nominees. Judge Bennett paid a second and longer visit to his old home, and returned to San Francisco after an ab- sence of three years, in i860. Since that time he was in continuous practice at the San Francisco bar until his death. From 1866 History of the Bench and Bar of California. 447 until 1868, Judsre Bennett was in partnership with Elisha Cook, Esq., brother of his for- mer law-partner in New York. Later, he w^as the senior member of the law firm of Bennett, Machin & Owen. At 'the celebration in May, 1869, of the completion of the Pacific Railroad, b" the people of San Francisco, Judge Bennett had the honorable task assigned him of delivering the oration on the occasion. In grandeur of thought, splendor of diction, and beauty of expression, this efifort will compare favorably with his address delivered in 1850, to which allusion has been made. Thus, it will be seen, the name of Nathaniel Bennett will be inti- mately associated through coming time with the history of the two grandest events which in his age affected the interests and destinies of his adopted State. Judge Bennett died at San Francisco April 20, 1886. His estate was appraised at $39,500. See the article on the "Bonanza Suits." JOHN S. HAGER. John S. Hager was born in New Jersey, March 12, 1818. His ancestors on both sides were German Protestants, who first retreated to Holland, and from that countrv emigrated to America. Thev landed at Philadelphia in the year 1707, and with other German colonists, finally settled on the south branch of the Rari- tan river, in an uninhabited portion of New Jer- sey, to which they eave the name of German Valley, and where their descendants still reside. Their sons were among the officers and sol- diers of the Revolution of the army of Wash- ington. His grandfather was an officer in the war of 1812. Born and reared on his father's farm. Judsfc Hager entered the College of New Jersey, at Princeton, from which he graduated in 1836, receiving in due course the degrees of Bache- lor of Arts and Master of Arts. His alma mater since conferred upon him tlic honorary degree of Doctor of Laws. He studied law at Morristown, N. J., under the direction of Hon. J. W. Miller, United States senator from that state, being admitted to the bar in 1840, and commencing the practice at Morristown, He there remained until his emigration to California. He came to this State in the spring of 1849. He went after a few weeks' stay at San Francisco, to the mines, in what is now Nevada county. During the summer and fall of 1849, he was engaged in mining and merchandising on Bear river and Gold Run. In the fall of that year he made a trip with a six-mule team to Sacramento and San Francisco for supplies. During his visit to the latter city he concluded the State would be speedily settled by a large population, and he resolved to close his business in the mines and resume the practice of his profession in San Francisco. He began law practice in that city in Janu- ary, 1850, and soon had a profitable business, but he was not able to properly devote him- self to it, on account of ever recurring at- tacks of rheumatism. He was walking on crutches one day in 1852, when a committee of citizens, on behalf of the Democratic party, waited on him and informed him that that party had nominated him for the State senate. He accepted, his associate being the late Elisha Cook. The city then had only two senators, the Whig nominees being John H. Baird, and A. Bartol. One candidate on each ticket was elected^Judge Hager and Captain Baird. In the State senate Judge Hager verv soon exhibited that stern sense of duty which ever marked his career as a public man. Not to dwell upon ihis record, it may be stated that in the session of 1853 he defeated the famous attempt to extend and grab the water front of San Francisco. The scheme was to extend the entire water front 600 feet, wholly in the interest of private parties. It was a colossal "job." It was defeated in the senate by a tie vote. Senator Samuel B. Smith, of Sutter, one of his companions in the mines, who was at first favorable to the measure, and who, before he understood it, had prom- ised some of his friends to vote for it, after personal entreaty and explanation from Judge Hager decided not to vote at all, which left the senate equally divided. In 1855 Judge Hager was elected on the Democratic ticket District Judge of the Fourth Judicial District for a full term of six years. -Vt it'he opening of banking hours on the morning of February 23, the doors of the great (banking house of .Xdams & Co. were found closed. They were never to be thrown open again. The firm was composed of .Mvin Adams. I. C. Woods, and D. H. Haskell. The first-named resided in New York city. Be- lieving himself to be a special partner, he was yet a general partner under California laws. When the suspension was determined on (there was no overland telegraph then) friends of Adams in San Francisco, through counsel (Janes, Doyle, Barber & Boyd, and 448 History of the Bench and Bar of California. Hackett & Casserly) immediately instituted suit in his name, in the District Court of the Fourth Judicial District, then presided over by the late Judge Delos Lake, against his partners. Woods & Haskell, to dissolve the partnership and to have a receiver appointed to administer the property and effects for the benefit of the creditors. Air. A. A. Cohen was appointed receiver by Judge Lake, and gave a bond in the sum of one million dol- lars. During the pendency of this suit, the com- pany, by their firm name, made application to be discharged as insolvent debtors, and A. A. Cohen, Edward Jones and Major Rich- ard Roman were appointed by Judge Lake as assignees, and the money, etc., in the hands of Cohen, receiver, was, by order, turned over to these assignees. The proceedings in in- solvency were declared to be informal, and were dismissed. On the 8th of October, Judge Delos Lake having resigned, and being succeeded by Judge Hager, the latter ap- pointed General H. M. Naglee to succeed Mr. Cohen as receiver, and made an order that the assignees in the proceedings in insolvency should pay the funds, etc., in their hands, to Receiver Naglee. This the assignees refused to do, and were adjudged guilty of contempt. Upon an appeal to the Supreme Court, this order was finally affirmed, and the money was then paid. Mr. Cohen had accounted for about $150,000 of coin, gold dust and bullion. General Naglee brought suit against him to recover the sum of $400,000 which, it was al- leged, the first receiver had collected above the amount accounted for by him. The trial came ofif before Judge Hager and a jury in March, 1856. The history of the failure of Adams & Co., and of events incident thereto, possesses the fascination of romance. The curious will find many smaller revelations in the local news- paper files of January, March and April, 1855, March and November, 1856, January and De- cember, 1857, and in the California Supreme Court Reports, Volume 5, page 494, and Vol- ume 6, pages 316 and 318. The jury rendered a verdict against Mr. Cohen for $269,000. The trial was one of the most exciting civil contests in our history, and aroused the pas- sions of experienced counsel. Mr. Trenor W. Park and the late Edward Stanly argued the case for the plaintifif, and General E. D. Baker and Mr. S. M. Wilson for the defendant. On the evening of the 17th of November, 1855, General William H. Richardson, the United States marshal, was shot and killed by Charles Cora on the sidewalk on the south side of Clay street, a few yards west of Leidesdorfif. The parties had had a dispute at the Cosmopolitan late on the preceding night. The witnesses to the shooting were few and their evidence unsatisfactory. As to which party was the aggressor was left in doubt. Cora was a man of vicious surround- ings, and as to the character and disposition of General Richardson, the testimony was in substantial conflict. Cora was tried for mur- der in Judge Hagar's court. It was on this occasion that Colonel Baker made, in the face of a storm of popular indignation, his most brilliant plea in defense of a prisoner's life. Tlie defense was permitted by the prosecution to assail the character of the deceased, and its evidence on this point was opposed by counter testimony. Judge Hager's charge can be found in the local journals of January 18, 1856. It is worthy of mention that he took occasion to declare that the statute requiring Judges to deliver their charges in writing was, in his jud^-ment, improvident, and per- haps unconstitutional. It was no fault of the Judge that the jury did not agree. He kept them out two nights and one day, and only discharged them after a second urgent request in writing. They stood four for murder in the first degree, six for manslaughter, and two for acquittal. Cora was remanded to jail. Before he could be brought to trial a second time the great vigi- lance committee took him out of his cell from the custody of Sheriff David Scannell. and hanged him. Judge Hager was elected as a Democrat, in 1865, to the State senate, at a special election, to fill a vacancy. His Republican opponent was William H. Sharp, the lawyer. Two years later, he was elected for a full sena- torial term of four years. He served in the State senate during five sessions, and, during the greatest part of his service he was chair- man of the judiciary committee, and all of the most important bills went into his hands. He voted against all subsidy bills, including the proposed San Francisco million-dollar donation to the Southern Pacific Railroad— on the ground that subsidies are wrong in prin- ciple, that the legislature has no right to tax the people to build railroads for private in- dividuals. History of the Bench and Bar of California. 449 In '^SjZ, Jndge Hager was elected United States Senator to fill the vacancy caused by the resignation of Hon. Eugene Casserlv. At the same session Hon. Newton Booth was chosen for the long term to follow Judge Hager. There was unexampled confusion in politics at that time. Messrs. Booth and Ha- ger were elected as anti-monopolists. During the two sessions of the Forty-third Congress, while he was a member of the Sen- ate, he largely engaged in the current debates, and his speeches on Chinese immigration, the currency question, the Louisiana case, involv- ing the admission of Pinchback (colored) as a Senator, and various other topics, are fully reported in the Congressional Record. Judge Hager became a regent of the State University, soon after its establishment, and continued such to his death. Judge Hager married in October, 1872, at St. Louis, Missouri, the daughter of James H. Lucas, one of the most opulent citizens of that city, who was the capitalist of the bank- ing house of Lucas, Turner & Co., for a long time doing business under the management of General Sherman in San Francisco. When in 1882 the two great political parties wisely agreed, through their representatives assembled in conventions, that a new char- ter was needed for the government of the city and county of San Francisco, and that the body of freeholders to be selected to frame that instrument should be lifted above the atmosphere of partisan strife, having each designated seven men out of fifteen freehold- ers as members of the charter convention, they united, without one whisper of dissent, upon Judge Hager, as the fifteenth and crown- ing constituent of the body. He was elected and served as President. Judge Hager's latest public trust was the office of collector of customs at San Fran- cisco. To this he was appointed by President Cleveland in 1885. The appointment was a siurprisc to him, but he accepted and took charge of the custom-house on November 2, 1885. He served three and a half years, re- signing immediately after the inauguration of President Cleveland's successor in March 1889. The Judge died at San Francisco, suddenly in bed, at night, about 4 A. M., March ig. JOSEPH W. WTNANS. Joseph VV. Winans, it has always been gen- erally agreed, was the first scholar of the bar of this State. All through his life he was writing poems, editorials, addresses, etc., and it would seem that no man, properly devoted to the law could afford to give one-half so much thought to that character of work. However, the profession always accepted him as distinctively a lawyer, true to his trust. Early winning a leading place, he kept it through a long career. He manifested a lively interest in the selection of the judiciary, in the support of law libraries, law journals and bar associations; zealously labored to promote the efficiency and dignity of the bar, and, when one of his brethren passed over the silent river, it was usually his hand that penned the memorial, which was spread upon the minutes of our courts. Mr. Winans was born in New York city, July 18, 1820. He was of English-German extraction, his ancestors coming to America more than a century before his own birth. The picturesque lake, Winandermere, in Eng- land, was named for one of his forefathers. His paternal grandfather was a soldier in the American Revolutionary army. His father was for forty years a prominent merchant in New York city. He retired from business with a large fortune, and at his death was over ninety years old. Mr. Winans entered Columbia college at the age of sixteen, having passed through a gram- mar school. He graduated from college at the age of twenty. After three years' study, he received his certificate as an attorney-at-law. The ranks of the profession were divided then into two distinct grades, attorneys and counsellors. After practicing three years as an attorney, Mr. Winans received his license as a counsellor-at-law, signed by Justice Bron- son. The next year (1847) the people of New York adopted a new State constitution, in which the distinction between the grades of attorney and counsellor were abolished. .After continuing practice for three years longer, he and a few other young men bought and equipped the bark Strafford, in which they sailed from New York, February 6, 1849, and arrived at San Francisco, by way of Cape Horn, August 30, 1849. Resting here onlv a few days, they proceeded in their little craft to Sacramento. There Mr. Winans formed a law partner- ship with John G. Hycr, which continued to 450 History of the Bench and Bar of California. the great flood of the winter of 1861-62, when Mr. Winans removed to San Francisco. Shortly after commencing practice, the firm of Winans & Hyer found litigation rife — land contests and disputed squa.tter titles. For a time squatter sovereignty held sway, and law- yers and sheriffs were kept busy in settling those so-called "settlers." Again, the ma- chinery of the courts was to be put into oper- ation ; local government to be established ; streets, lots, squares and cemeteries to be laid out; police and fire departments to be set in immediate motion. Mr. Winans' firm hand was seen in all these movements. We recall a visit which we made in boy- hood to the District Court in Sacramento, at the beginning of a term of court — always the drycst day of the term — when the term cal- endar was called, and the firm of Winans & Hyer appeared on one side or the other in over forty-two cases ; more than double the number credited to any other firm. On his removal to San Francisco, Mr. Winans formed a partnership with Mr. David P. Belknap. Mr. Winans held many offices of honor and trust without emolument. In 1850, within a year after his arrival there, he was the Whig candidate for Criminal Judge, then called Recorder — of Sacramento city, but was defeated by B. F. Washington, the Democratic nominee. From 1852 to 1854, Mr. Winans was city attorney of Sacramento. In 1858, he was chosen president of the Sac- ramento Library Association. Between the two years last named he served three terms as president of the Pioneer So- ciety of Sacramento. In 1859, he attended the general convention of the Protestant Episcopal Church, which met in Richmond, Virginia, and took a promi- nent part in the debates. He had been one of the organizers of the Episcopal Church Society in Sacramento, and was a vestryman there, as afterwards in San Francisco. In 1851 he was elected by the legislature one of the trustees of the State librarv. and was chosen by his associate trustees president of the board. He held that position some ten years. In 1864 he was elected president of the San Francisco Society of California Pioneers, and in 1865 was president of the San Francisco board of education. He was one of the founders of the San Francisco Law Library, and, on its organiza- tion in 1865, became one of its trustees, and continued in that position to his death. He also aided to organize the San Francisco Bar Association, of which he was a trustee from its formation until 1879. He. was a re- gent of the University of California for many years. He was president of the Society for the Pre- vention of Cruelty to Animals, and of the Society for the Prevention of Cruelty to Chil- dren. He was elected on the citizens' ticket to the State constitutional convention, which, met in Sacramento in September, 1878. He was a hard-working member of that body, but, like the large majority of the leading lawyers of his side of the house, he strongly opposed the ratification of that instrument. It was Mr. Winans' melancholy duty to write the epitaphs of many distinguished Judges and lawyers of California.. From his pen were the bar memorials of Judge Hugh C. Murray, who became a Supreme Justice at the age of twenty-nine, and died on the bench at thirty-two ; of Hon. Edward Nor- ton, who had served a term as Supreme Judge; of the Hon. Edward Stanly, who had been Governor of North Carolina; of John B. Fel- ton, who died lamented by the entire bar, in June, 1877 ; of Judge James H. Hardy, who had been his competitor in the famous Archy case, who died in 1873; William H. Patter- son, for many years prominent in San Fran- cisco, and who, after a long disabilitv. died in 1881 ; and several others. He also wrote the resolutions adopted by the Pioneers, in respect to the memory of Charles D. Carter, an old business man, who had been a me- chanic, an editor, an alderman, and who, at his death, in June, 1871, was president of the Pioneers. He also delivered a brief address in the Fourth District Court eulogistic of Judge Joseph G. Baldwin, once Judge of our Supreme Court, who died on October i, 1864. His memorial of Felton was, perhaps, the best of all — unless his paper read to the Pio- neers, on the death of President Garfield, be excepted. In verse — didactic, erotic, lyric, pastoral, etc. — Mr. Winans was fruitful. His last and longest poem, entitled "A Centennial Lyric — The Course of Empire," appeared December .•^i. 1876. It should be stated with emphasis that, while Mr. Winans had a bright literary rec- ord, he always subordinated letters to law. History of tJic Bench and Bar of California. 451 He never asked or received compensation for his literary work. He was a lawyer first, a literary man second. Actively and labori- ously and continuously, since 1843, he worked steadfastly and devotedly beneath the banner of his profession. He had a quick and acute perception, a watchfulness that took nothing for granted, an energy and enthusiasm that •tell. Milton S. Latham, after his brilliant life at the bar and politics, and when he had become a banker, was a client of Mr. Winans. Latham said to Winans one day, atter leav- ing court, (and they had known each otner since 1850) : "I would employ you in a law- suit above all other men I know, because 11 you have to 'come down,' ypu will scratch the bark in coming down." After his removal to San Francisco he con- ducted to successful issue many of the most important cases that were tried. A fine belles-lettres scholar, full and fin- ished, well grounded in all classics, and a de- vourer of all that class of books which, to quote Bacon, are worthy to be "chewed and digested," Mr. Winans' private library in his home mansion was indeed "a study." It con- tained 5000 volumes — rare, ancient, and mod- ern — embracing works on art, science, history, logic, philosophy, etc., etc., and all the poets. In this studio he spent his leisure hours with the genius, wit and learning of the past, ac- cumulating stores of instruction for the profit of the public in the lecture hall, as well as for the guests at his fireside. In glancing over the list of subjects that engaged his thought and exercised his pen, one is aston- isihed at their vast variety, as well as charmed by the manner of their treatment. He was passionately fond of fine paintings. Possessing an aesthetic taste, he was a devout worshiper at the shrines of Raphael and Hor- ace Vernet, and Trumbull and Sully, whose masterpieces beautified his drawing-rooms. His only daughter, Lilie, inherited his love of art, and is an enthusiastic student af the easel. Mr. Winans married at Sacramento, in 1854, Miss Sara A., second daughter of Alexander Radlam, Sr., and sister of Hon. Alexander Badlam, Jr., who was afterwards city and county assessor of San Francisco. He lost one son, aged nineteen years, in 1880. His only other son, Joseph W. Winans. Jr., who was admitted to the bar in 1880, died about ten years after his father. Mr. Winans died at San Francisco, March 31, 1887. THE FIRST GOVERNOR. Peter H. Burnett, the first Governor of Cali- fornia, was a lawyer, and a pioneer of pioneers. His long life ended forty-five years after he left the executive chair. Governor Burnett was a native of Tennes- see. 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. His early manhood was spent in Missouri, chiefly in mercantile pursuits, in which he failed, and which involved him in large in- debtedness. That he might be able to cancel his obligations and restore his wife to health, he looked to the new 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 work- ing in the northern mines for a few weeks, settled at Sacramento, and entered on law prac- tice. He had been admitted to the bar in Ten- nessee. 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. Re- moving to San Francisco, where his family rejoined him, he opened a law office. His pro- fession, his manners, his business judgment and habits of life made him speedily and favor- ably known. In the first gubernatorial cam- paign, the candidates were not nominated by regular conventions, but were 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 nominated John W. Geary (Democrat), W. S. Sherwood (Whig), John A. Sutter and W. M. Steuart (independents). The people gave Burnett 6716 votes, Sherwood 3188, Sutter 2201, Geary 1475, Steuart 619. Governor Burnett was inaugu- rated in December, 1849. Public life proved distasteful to him, and he resigned in January, 1851, when the legislature was sitting at San Jose. He then resumed law practice in part- nership with William T. Wallace and C. T. Ryland, who were destined to be his sons-in- 452 History of the Bench and Bar of California. law and distinguished 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. He gave up law practice in 1854 and entered on a wide course of reading. He made his first sea voyage in 1856, visiting New York city in company with his son-in-law, Mr. Ry- land. He afterwards made two other visits to the East by sea. His last two public speeches were made in opposition to the great vigilance committee in 1856. In 1857 he was appointed a Supreme Judge by Governor John- son, and filled out an unexpired part of a term, nearly two years. In 1863 he, with others, founded the Pacific bank. For many years he was president, and then resigned. He published a book of the recollections of his life. In it this rule is laid down for the guidance of bankers and all business men : "If a man oiicc goes through insolvency or bank- ruptcy, or compromises with his creditors, or indulges in unreasonable expenses, he is un- worthy of credit." He says the excentions to this rule are about one in ten. He thinks, also, (in this book) that in banking the tempt- ation to do wrong is less than in almost any other secular pursuit. Governor Burnett died at San Francisco while in sleep, in the day-time, on the 17th of May, 1895. His age was eighty-seven years and six months. He left a valuable estate and many descendants. TTie San Francisco lawyer, John M. Burnett. Mrs. Judge William T. Wal- lace, and Mrs. C. T. Ryland, of San Jose, are his children. EDMUND RANDOLPH. Edmund Randolph was the scion of a long, puissant line of men, commencing with the pioneers of American freedom. He left an antique home flooded with Revolutionarv glo- ries, and came to the remotest dominion of the republic, himself a pioneer in the work of founding a free empire upon virgin soil. Bringing with him the stimulus of a high am- bition and the heritage of ancestral fame, he approved himself the heir of moral excellence and of great intellectual power. He was born in Richmond. Virginia, in the year 1819. He attended the ancient and cele- brated college of William and Mary in that State, one of his fellow-students being the Hon. Archibald C. Peachy, who came to be for many years a prominent and wealthy law- yer of San Francisco, and who died in June, 1883. As Randolph sat at his desk in that historic institution of learning, his eyes daily fell upon one of the noblest triumphs of the sculptor's art, a tablet of carved marble erected in memory of his remote ancestor. Sir John Randolph. Sir John came from England to Virginia early in the last century. His first son, John, was the great-grandfather of the California lawyer. His second son, Peyton Randolph (born in Virginia, 1723, died in Phil- adelphia, 1775,) was twice president of the Con- tinental Congress. Sir John's grandson, Ed- mund, grandfather of our present subject (born 1753, died 1813), was Governor of Vir- ginia, attorney-general of the United States under Washington, and succeeded Jefferson as Secretary of State. A fine portrait of him still may be seen in the attorney-general's of- fice at Washington. Between the first Edmund Randolph and his grandson of the same name came Peyton Randolph, named after the patriot before men- tioned. This second Peyton Randolph was also a lawyer of distinction. He married Maria Ward, the only girl whom the eccentric John Randolph of Roanoke, ever loved — ac- cording to his own confession. (It may be stated here that the families of Sir John Ran- dolph and John Randolph of Roanoke, were not related.) Maria Ward was a noted belle, perhaps the most beautiful and accomplished American woman of her day. Lewis and Clark, in their exploration of the great un- known West in 1803-4, named a river "Maria," after this maiden. Maria Ward was the mother of Edmund Randolph, our subject. Upon graduating from William and Mary college, Edmund Randolph attended the Uni- versity of Virginia for one year, chiefly as a student of law. Then removing to New Or- leans, he obtained, by appointment, the office of clerk of the United States Circuit Court for the circuit of Louisiana. Pursuing his legal studies, he was, after a few j^ears, ad- mitted to practice, and followed the profession in the Crescent City until 1849. He married in that city the daughter of a leading physician, Dr. Meaux, a lady whom he had met in Vir- ginia some years before. He arrived in Cali- fornia in 1849. A few weeks later he was elected to represent San Francisco in the lower branch of the legislatuse — at the first session of that body, which opened at San Jose, De- cember 15, 1849. This body met to organize a State government. It was known as the "Leg- islature of a Thousand Drinks." This title History of tJie BeiicJi and Bar of California. 453 was not given it on account of the intemper- ate habits of the members, as popularly sup- posed, but owing to the words invariably uttered by Senator Green of Sacramento when inviting friends to his sideboard : "Walk in, gentlemen, and take a thousand drinks." In one of the museums of London may be seen crayon sketches, by an English artist, of all the members of the legislature at this ses- sion. Every man had a "flop" hat and a "hick- ory shirt. Mr. Randolph was a leader of the lower hou.se throughout the session. State officers and United States Senators having been chosen, he was appointed, with John Bigler, to wait upon the provisional Governor, General Riley, and inform him of the organ- ization of the State government. The com- mittee requested General Riley to turn over to the State treasurer the "civil fund," aggregat- ing $1,300,000, collected by the United States army and navy officers, without legal author- ity, since the acquisition of the country. Gen- eral Riley refused to do this, but turned the fund into the Federal treasury, although he had paid therefrom the expenses of the State constitutional convention. TTie legislature was accordingly compelled to borrow money, issu- ing bonds bearing three per cent per month in- terest. The greatest cause in which ^Iv. Randolph was ever engaged was the most important civil action ever tried in California. It was a contest between the United States government and the assigns of Andreas Castillero, and involved the title to the great Almaden quick- silver mine, in Santa Clara county, together with two square leagues of land adjoininp- the mine. The whole property in dispute aggre- gated in value several million dollars. Mr. Randolph was introduced t© the case by his life-long friend, A. P. Crittenden, who was at- torney for the "Fosset" claim to the mine, those representing the Fosset claim, of course, desiring to see the government triumph over Castillero. The history of the discovery of this remark- able mine and the twenty years' litigation which followed it, would make a volume in itself. It is full of interest. The mine was discovered by Andreas Castillero, a wealthy Mexican, in the year 1845, when California was a Mexican territory. After the acquisi- tion of this country by the United States, Congress having established in San Francisco a land commission to settle the private land claims in California, a petition was filed by Castillero with this commission, September 30, 1852, asking that his claim to the New Al- maden mine, and two square leagues of ad- joining land, be confirmed to him. Halleck, Peachy and Billings were petitioner's attor- neys. The claim was opposed by the United States through the United States land agent. The land commission confirmed Castillero's title to the mine, but denied him the land. On appeal to the United States District Court, a great legal battle ensued. Both parties were appellants and both respondents, neither being satisfied with the decision of the land com- mission. On behalf of Castillero, appeared Reverdy Johnson, Judah P. Benjamin and Archibald C. Peachy ; on the part of the gov- ernment, Edwin M. Stanton and Edmund Ran- dolph. The full proceedings of this trial were printed by order of the government. They comprise five large octavo volumes. Mr. Ran- dolph's closing argument for the government covers three hundred printed octavo pages. It will be borne in mind that Castillero claimed the mine, and two square leagues of land ; the land commission confirmed to him the mine, without the land. To the outsider who knows nothing about the equities of this case, this might seem to be a fair compromise. But it satisfied neither party. The govern- ment was not willing to take the land and sur- render the mine, and Castillero was not satis- fied to take the mine and give up the land. The decision of the United States District Court was affirmatory of that of the land com- mission — the mine to Castillero, but not the two square leagues of land. The case was taken to the Supreme Court of the United States, and that tribunal decreed that Castillero was not entitled to either the mine or the lands. But before it was argued in that august tribunal, Randolph died. He had received a fee of $5000, and expected a large sum in addition. The United States be- ing his clients and the property at stake being of such immense value, he felt that his services, covering some four years' ti;ne, would receive princely remuneration. However, the $5000 paid him as a retainer, was all that he received. After his ieath his widow presented a claim to Congress for $75,000. A petition accom- panied the claim, signed by fifty leading law- yers of San Francisco, setting forth that Mr. Randolph's. life was sacrificed in this case, and that considering the magnitude of the interests involved and the length of the controversy, the sum asked by his widow was reasonable. On 454 History of the Bench and Bar of California. final settlement, the government paid Mrs. Randolph $12,000, making $17,000 paid for Mr. Randolph's services. The government paid Mr. Randolph's coadjutor, Edwin M. Stanton, $25,000, although the whole burden of the case was upon Mr. Randolph. The counsel on the opposing side, Reverdy Johnson and Judah P. Benjamin, received $35,000 each, this fact being disclosed in a letter from Mr. Johnson to Hon. T. J. Dur- ant, of Washington. In that letter Mr. John- son stated that the great labor of collecting the evidence for the government in the New Almaden case devolved wholly upon Mr. Ran- dolph ; that the latter argued the case at great length and with great ability; and prepared an elaborate brief, which, after his death, was used on appeal in the United States Supreme Court. Mr. Johnson added that he would not perform the services rendered by Mr. Ran- dolph for less than $25,000. Randolph had little wit, but fullness of sar- casm. He never told a "joke." At collep-e, whenever, "one of the boys" would say a good thing, Randolph would ask, seriously, "What does that prove.''" He once said a good thing himself, however, about a certain Judge, on the bench, noted for his fluency of speech. This Judge was delivering an- opinion, and Randolph was impatiently waiting to com- mence the trial of a cause. The Judge rolled out sentence after sentence, and period after period, with magnificent volubilit}', and it seemed that the end would never come. In the midst of this judicial display, Randolph turned to Tully R. Wise, and inquired sotto voce, "Did it ever occur to you what a great man Judge would make, if he only stuttered?" But Randolph, it must be said, had a one- sided mind. He never took in the whole sit- uation. Looking at him in the New Almaden case, the most prominent fact is his tireless industry. Coming from the South, and being impetuous in temperament, it is a marvel that he could bestow upon any cause the patience, industry and labor which he gave to that case. He was a genius, but he was not a legal genius. He was not a powerful reasoner. He was not logical. We cherish his fame, but we are speaking the conclusion of the bar leaders who knew him best. He was full of poetry and enthusiasm, yet at the same time, strange to say, he was a hard-working man. He won public admiration, yet he had few intimate friends. He was not companionable. In his family, however, he was almost worshiped. He was a man of splendid visions. He took a deep interest and an active part in General Walker's scheme for the conquest of Nica- ragua. Walker was a (born leader of men, but he succumbed fully to Randolph's influence. Randolph, like Bishop Whitefield, sincerely believed that no Southern country could be developed without slave labor. He hoped to see a central empire established between the Western continents, of which Walker would be the executive head, and he (Randolph) the great chancellor. His dream came nearer fulfillment than is generally supposed. The United States did not interfere with Walker's operations, and there is hardly room to doubt that with Vanderbilt's aid the great filibuster would have won an honorable name in his- tory. Vanderbilt had a magnificent grant from the Nicaraguan government, giving him the e.xclusive right to transport passengers and freight across the isthmus, and also entitling him to a large land grant on both sides of the great highway. This splendid franchise Walker, in an evil hour for himself, wrested from Vanderbilt and conferred upon the Mor- gans of New York city. When Walker's last stronghold was taken, it was found that the besieging force was com- posed principally of white sailors ! They were in the pay of Vanderbilt ! Randolph delivered to the Society of Cali- fornia Pioneers, September 10, i860, the ablest historic address ever uttered on this coast. In it he referred to the fate of his friend Walker, and also to the end of Henry A. Crabbe, who led a filibustering party into Alexico. Randolph died at San Franci.sco, September 8, 1861. aged forty-two years. S. C. HASTINGS. The first Chief Justice of the Supreme Court of California, and the founder of Hastings College of the Law, was born in Jefferson county. New York, November 22, 1814. His father, Robert C. Hastings, had removed from Boston to New York, and 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 Gouver- neur Academy for si.x years, being under the History of the Bench and Bar of California. 455 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 sys- tem of instruction, and the Angletean system of mathematics, and other branches of educa- tion. At the end of one year he resigned and went to Lawrenceburg, 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, 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 admit- ted to the bar by the Circuit Court at Terre Haute, Indiana. In January, 1837, he removed to Burlington, in what is now the State of Iowa. He soon located at a little hamlet, which has grown into the city of Muscatine. All that vast re- gion was then under the jurisdiction of the courts of the Territory of Wisconsin. Having after another examination, been again admit- ' ted to the bar, Mr. Hastings commenced prac- tice. He was soon appointed a justice of the peace by Governor Dodge, of Wisconsin terri- tory. He used to say that his jurisdiction covered the whole Western territory, extend- ing even to the Pacific ocean. He was a man of large stature, capable of great physical en- durance, 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 pop- ular of her citizens. When the territory of Iowa was created in 1838, Mr. Hastings was elected, as a Democrat, a member of the lower branch of the legisla- ture. 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 im- portant legislation. He reported from that committee the statute which was afterwards, for many years in Iowa and Oregon, known as "The Blue Book." In 1846, upon the admission of Iowa into the Union, Major Hastings took his seat as her first representative in the lower house of Con- gress. This was the Twenty-ninth, or Mexican War, Congress. At the end of his congres- sional 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. Judge Hastings came to California in the spring of that year. He settled at Benicia. About six months after his arrival he was chosen by our legislature (December 20, 1849) Chief Justice of the Supreme Court, his asso- ciates ibeing Henry A. Lyons and Nathaniel Bennett, both of 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 sur- rendered in Iowa. His term was two years, which he served out.. Judge Hastings stepped from the Supreme bench into the office of attorney-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 an- num) proved to be a poor support for a pro- fessional 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 con- duct some law business on his own account. He soon entered upon a career of prosperity and the attainment of wealth. The foundation, the nucleus of Judge Has- tings' colossal fortune was the money which he received in the shape of law fees while at- torney-general. He held this office two years, and then continued law practice. He also be- came 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- 456 History of the Bench and Bar of California. general, he followed his profession 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 Fran- cisco, 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 dol- lars. The San Francisco property, standing in his name down to December, 1887, was valued at $150,000, he having, about ten years before, conveyed to his son. C. F. D. Hastings, in trust for all his children, city realty of the assessed value of half a million. Besides making other munificent provisions for his children, he pre- sented 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 s'cale. Judge Hastings was married to Miss Azalea Brodt, at Muscatine, Iowa, in 1845. She, with her children, joined her husband at Benicia in 1851. At that town the family home was located for many years. Mrs. Hastings died at Pan, in the south of France, in 1876. There were eight children of the marriage— Marshall- C. F. D., Robert P., Douglass, Clara L., Flora A., Ella and Lellia. 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 in- spire 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 declared his con- viction 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. In order to formally accept the donation and to carry out the views of the donor, the legis- lature of 1878 passed an act creating the col- lege. By that act the officers were declared to be a Dean, Register and eight Directors — 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 Thomas I. Bergin. The Dean and Register were to be appointed by the Direct- ors. The act provided further that the col- lege should affiliate with the University of the State, and be the law department there- of; that the sum of seven per cent per annum upon one hundred thousand dollars should be paid by the State, in two semi-annual pay- ments, to the Directors of the College, and that any person might establish a professor- ship in his own name, by paying to the Di- rectors thirty thousand dollars. The Directors very appropriately asked Judge Hastings to take the position of Dean, and he complied. After some years he relin- quished the post, and his son, Robert P., was made his successor therein, the Judge taking the Professorship of Comparative Jurispru- dence. Thirty dollars is the limit of expense to the student — $10 for each year, or for ad- mission to each class. This college, although technically a part of the State University, is wholly located at San Francisco. Its stu- dents 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 en- titled to practice 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 died at San Francisco on the i8th of February, 189,3, aged seventy-eight years. PETER VAN CLIEF. Judge Peter Van Clief was born in Ohio, on the 26th of January, 1818. He was admitted to the bar in Ohio, and practiced law in that state for several years. He came to California in 1849, across the plains, and after having en- gaged in mining for a time, located at Downie- villc, engaging in law practice. In 1851 he became, by appointment of Governor Weller, History of tlic Bench and Bar of California. 457 also a native of Ohio, judge of the Seventeenth Judicial District. After leaving the bench, he practiced law in Downiex'ille for some time, and afterwards engaged in the practice in Mar3-sville, from 1870 to 1877, and then removed to San Francisco. He afterward al- ternated between San Francisco and Downie- ville. In 1889 he was appointed Supreme Court commissioner, and held that office until his death on November 29, 1896. He was twice married, and left a widow, Mrs. H. A. Van Clief, and three daughters, Mrs. H. L. Gear and Mrs. W. F. Herrin, of San Francisco, and Mrs. Helena C Cowden, of San Jose. A press writer, in noticing the end of this long and worthy life, said very well that he was universally and justly esteemed for his legal attainments, and that he was otherwise a man of deep culture, having contributed ably and frequently in the field of general litera- ture. In everything which he said or wrote he was so rigidly upright that he came to be spoken of by some people as a man of imprac- ticable honesty. His friend. Judge John Currey, who was Chief Justice of our Supreme Court, when he first met Judge Van Clief, said, when he learned of the latter's death, "He argued a number of cases, and I saw that he was a law- yer of rare ability. I came to know him well, and saw much of him for a good many years. In the preparation and trial of cases he mani- fested the ability and confidence of the thor- oughly equipped lawyer. In a case in which I was engaged on the other side, and he and the late Judge H. O. Beatty (father of our Chief Justice), were on the other, I became more thoroughly impressed than ever with his familiarity with the law, and his freedom from all undue maneuvering for temporary and useless advantages. "He was a very plain and direct man," con- tinued Judge Currey, "in all his intercourse wth men. He never, so far as I know, mani- fested anything like vanitv. He hated all sham. He was a thoroughly honest man — honest with himself and all others. Advanced as he became in years, I greatly regret his de- parture from among us. I feel his loss with a mournful sense that a good man, whose in- fluence was always beneficent, is gone forever from the legal profession." Like high testimony was given by Supreme Judge McFarland and ex-Supreme Judge Searlcs and others. SOLOMON HEYDENFELT. The features we are now to see testify to serious problems solved by untiring effort, but they show lines of tenderness and sympathy that held their place beside the imprint of ab- sorbing thought. They speak, too, of reputa- tion won, not in forensic encounter but in council. "Cautious, silent and laborious," as Macaulay pictured Godolphin, here is a mind that kept tranquil amid the severest employ- ments reaching through a long flight of time. Here is one whose lifework was nearly all done apart from public observation. 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. Solomon Heydenfeldt was born at Charles- ton, 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 defalca- tion of an agent who held his power of attor- ney. Being fortunately reared with maternal care, Solomon Heydenfeldt was sent to a col- lege in Pennsylvania, where he studied Latin and Greek and mathematics; but he left col- lege 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 re- moved to Alabama, first stopping at Montgom- ery, 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 married, and passed thirteen years of his life in active and successful law practice. He removed to California in the spring of 1850, settling at San Francisco. His e.xcellent hab- its and business assiduity, his generous dis- position, 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 1851, and presents a hulicrous instance of a jury's sense of pro- jiriely. Samuel Gallagher had killed Lewis Pollock on the night of June 22, 1851. Galla- gher was tried for murder in the Fourth Dis- trict Court, Delos Lake presiding, August 12, 1851. When the jury had been out for three hours, the bailiff entered Judge Heydenfeldt's office and informed him that he was directed 458 History of the Bench and Bar of California. by the jury to state to him (Heydenfeldt) that they stood, firmly, seven for conviction of murder in the first degree and five for acquit- tal, but that if it pleased him (Heydenfeldt), they would agree upon a verdict of manslaugh- ter. Judge Heydenfeldt was agreeable, and 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 cap- ital cases, in addition to imprisonment, was quite the fashion here in early days. The law and the courts never got so far advanced, however, as to fine a man and hang him, too. After the sentence of Gallagher, Judge Hey- denfeldt told his friends generally of the com- munication between himself and the jury. Judge Lake did not learn of it until the sen- tence 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 ad- mission 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, Solo- mon Heydenfeldt was the Democratic caucus candidate, and T. Butler King, then collector of the port of San Francisco, was the Whig nominee. Fremont, it may be explained, had been elected for the short term by the legis- lature which met previous to the admission of the State, on the happening of which event ("September 9, 1850) he took his seat in the United States Senate, to serve until the fol- lowing March. In January, 1851, in the con- test 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 of four Northern Democrats, all of whom had participated in the Democratic cau- cus, "bolted" the caucus nomination, refusing persistently to vote for him. The- voted for John W. Geary, who was afterward Governor of Pennsylvania. The legislature took no less than one hundred and forty-two ballots with- out 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 Democratic bolters would not have accomplished anything of extra value, inasmuch as King was himself a proud South- ron. That legislative session closed without an election of Senator. At the next session John B. Weller was chosen. But for this un- expected miscarriage. Judge Heydenfeldt would have entered the Senate in his thirty- fifth year. It was the general belief among Democrats, after the legislature adjourned, in 1851, that Judge Heydenfeldt would be the party candi- date for L^nited States Senator at the next session, one year later. But before that ses- sion opened he was nominated by the State convention of his party for Judge of the Su- preme Court. Judge Heydenfeldt was elected in the fall of 1851 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 t, 1852. On January 6, 1857, having served five years on the bench, only one year of his term re- maining. Judge Heydenfeldt resigned. His opinions are contained in Volumes II to VII, inclusive, of the Reports. He left the bench because the salary did not enable him to sup- port himself and family and other dependent relatives. Resuming practice in San Fran- cisco, 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 sub- scribe 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. The act was repealed several years later, but by that time Judge Heydenfeldt had obtained a lucrative office business as advisory counsel tn many large firms, capitalists, and corporations, and he adhered to that department of the pro- fession. He tried a few large mining cases in the District Court of Storey county, Nevada, History of the Bench and Bar of California. 459 at a lime 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. The Judge accumulated a large fortune, but his expenses and charities were a constant and serious drain upon it. To the yellow fever fund, in the seventies, he made a princely con- tribution, and had it credited to "cash." In person he was diminutive, with small hands and feet, dark hair and complexion, a kind eye, well-shaped head and finely chiseled features. His weight was suited to his stature, he was well preserved, and possessed distin- guished dignity of manner. A man univers- ally esteemed, he yet held himself aloof from the people. He was not a man of the masses. We once heard him on the stump addressing a multitude of the unterrified. He was out of place. He disliked all gloss, and glitter, and tinsel and was void of arrogance and affecta- tion. He knew sorrow, bore the burden of care, and was thrown amid all the snares of pioneer adventure, yet he kept the mood and habit of the philosopher. Judge Heydenfeldt died at San Francisco on the 15th of September, 1890. 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." TOD ROBINSON. The ancestors of this gentleman were, on his father's side English, on his mother's Scotch-Irish. They emigrated to North Caro- lina at so early a day that all tradition of the event is lost. His father was a merchant and planter in that State. At a time when it was a life office, he held the position of clerk of the County Court for Anson county. In this county, Tod Robinson was born, A. D. 1812. When he was quite young, his father resigned his office and removed with his family to Ala- bama. Tod Rol)inson came to California from Texas, by way of Panama, in September, 1850. He landed at San Francisco, but not tarrying there, pushed on up the Sacramento river to Sacramento city, then the liveliest and busiest mining camp in the State. Here he settled, and entered immediately on the practice of law. He very soon attained prominence and success. He had not been in the city a year when Judge Thomas resigned his position as District judge of the Sixth judicial district, embracing Sacramento county, and Governor Burnett ap- pointed Mr. Robinson to fill the vacancy. For this honorable and responsible position his extensive legal attainments and his incorrupt- ible integrity eminently fitted him. During the short period of his occupancy of this office, Judge Robinson won the undivided esteem of the people of his district. In the list of able jurists who graced the bench of the Sixth judi- cial district. Judge Robinson's name shines with unfading lustre. He had occupied the position only a few months, when, in October, 185 1, the Whig party, to the principles of which he was devotedly attached, unsolicited, nomi- nated him as their candidate for Supreme Judge, whereupon he resigned his place on the district bench, and accepted the nomination for the higher office. The Whig party being in a minority, he was defeated. The election over, and having aided so materially in pre- serving the -organization of his party, at the expense of his own personal advancement and comfort. Judge Robinson resumed practice in Sacramento. He formed a partnership with Murray Morrison, since Judge of the Seven- teenth judicial district which continued for two years. In 1853, Judge Robinson was again nominated by his party for the Supreme bench. Anticipating defeat, he yet obeyed with alacrity the call of his party to carry the banner of Whiggery in the final charge upon the triumphant foe. The result was as ex- pected — the utter overthrow of the proud and gallant party to whose fortunes he had clung so steadfastly, and in whose last struggles he had been so conspicuous. Judge Robinson again returned to the practice of his nrofes- sion in Sacramento. Soon after the general election in 1853, he entered into partnership with II. O. Beatty, lately Chief Justice of the Supreme Court of Nevada, and James B. Hag- gin, an old and wealthy citizen of Sacramento and San Francisco, now residing in New York. This partnership lasted two or three years, when Mr. Hagtrin withdrew, and his place in the firm was filled by Hon. C. T. Botts, after- wards Judge of the Sixth judicial district. 460 History of the Bench and Bar of California. Judge Bolts being appointed to the bench, Mr. Heacock subsequently State senator from Sac- ramento, entered the firm. Judge Robinson's connection with Judge Beatty continued till the year 1862. Judge Robinson confined himself exclusively to his profession for several years, during which time he built up an extensive and lucra- tive business. During this important period in the history of Sacramento, his fidelity to his profession and his able management of the heavy litigation he was called upon to conduct, spread his fame as a lawyer throughout Cali- . fornia. In 1862, he accepted the Democratic nomi- nation for attorney-general. In 1863. he was nominated by the same party for Supreme Judge, upon the reorganization of the Supreme Court. On both occasions he was defeated with the rest of his ticket. He had now resided in Sacramento for thir- teen years. The practice of law being almost dead in that place, which the great flood of 1860-61 had almost depopulated, he removed to Virginia City, Nevada, where he resided eighteen months. While residing in that State, he was nominated by the Democratic State convention for clerk of the Supreme Court. He could easily have been nominated for the higher place of Supreme Judge, but his friends determined to give him the nomi- nation for the first-named position, because of the great emoluments attached to it. How- ever, his party being defeated, the hopes of his friends were not realized. Early in the year 1865, Judge Robinson re- turned to California, and settled with his family in San Francisco, where he resided until his death. Judge Robinson ranked high as an impres- sive and eloquent speaker. He was a cogent, logical reasoner. a racy debater, and could hurl the shaft of irony with cutting effect. His clear and mellow utterances, his earnest manner, his dignified, polished diction, often reaching solemnity in its calm and graceful flow, rendered him at all times an agreeable and pleasing speaker. He was quite fond of poetry, and a close student of Shakespeare. In addressing public audiences, he was decid- edly happy in his quotations from the immor- tal bard of nature. His private life was with- out blemish. Judge Robinson, before he became of age, thought of studying theology ; in fact, he did take up the study, with a view to becoming a clergyman of the Presbyterian Church. Al- though he changed his mind to that of the law he was always a Bible student and acquired a large fund of Biblical and theological knowl- edge. He married at Galveston, Texas, before re- moving to California, ^Nliss Mary Crittenden, sister of A. P. Crittenden. Mrs. Robinson died at San Francisco some years ago. Among their children surviving are C. P. Robinson, the San Francisco attorney, and Mrs. Salis- bury, the wife of the capitalist, Monroe Salis- bury. ISAAC E. HOLMES. Isaac E. Holmes was one of the most inter- esting characters that ever adorned the legal profession in any country. He brought to California a national fame. A native of South Carolina, he graduated from Yale college and studied law with Daniel Lord. He com- menced the practice in Charleston, South Car- olina. His splendid gifts of oratorv added to his great learning, made him prominent in politics at an early age. He represented his native State in the lower house of Congress for six consecutive terms. The old Congres- sional Record reveals his power of expression and his brilliancy in debate. Some speci- mens of his eloquence are to be found in Wil- liston's "Eloquence of the United States." Holmes came to California in 1851. For some years he boarded with Thos. W. Freelon, John B. Felton, and other genial legal spirits, at Madame Parrain's celebrated nrivate board- ing-house on Clay street, near Powell, where the table was constantly kept "on a roar" by his animated and sparkling talk. His literarv taste was superb — absolutely exquisite. He was impulsive, excitable, yet peculiarly gentle and companionable. Of course, the circle of his friends was very large. He was especially accomplished in English and Latin literature. His conduct of causes showed very keen pow- ers of observation, and occasionally he would turn aside from stern argument and indulge in the most melting pathos. An eloquent speech or a tender poem would powerfully move him. Wlien Freelon read to him Web- ster's oration on Greek Independence, he be- trayed violent emotion. When the Judge, at another time, in one of their delightful chats, recited Tennyson's "Bugle Song," he "died tears. He was a money-making man, but an improvident one. He was constantly specu- History of the Bench and Bar of California. 461 lating. He had little btisiness sagacity, yet made and lost several fortunes. At one time he bought an interest in a Hour mill, which he exchanged for the since-well-known Pied- mont Springs property. At the outbreak of the war, he returned with his family to the East, with the firm conviction that his great influence in his native State, as well as in Washington circles, could be effectively ex- erted in the interest of peace. He labored faithfully to this end, but of course to no pur- pose. He died in Charleston, South Carolina, in 1864. After his death, Captain Blanding, who held his power-of-attorney, sold the Pied- mont property for $30,000, which sum, in addi- tion to other real estate which he had left in California, placed his family above the reach of want. His memory is delightful as song — let it blend with the melody that so moved his soul : THE BUGLE SONG. Tlie splendor falls on castle walls. And snowy summits old in story; The long light shakes across the lakes And the wild cataract leaps in glory. Blow, bugle, blow, set the wild echoes flying; Blow, bugle, answer echoes, dying, dying, dy- ing. O hark, O hear ! how thin and clear, And thinner, clearer, farther going ! O, sweet and far, from cliff and scar, The horns of Elfland faintly blowing! Blow, let us hear the purple glens replying ; Blow, bugle, answer echoes, dying, dying, dy- O, love, they die in yon rich sky, They faint on hill or field or river, Our echoes roll from soul to soul, And grow forever and forever. Blow, bugle, blow, set the wild echoes flying. And answer, echoes, answer, dying, dying, dy- ing. GEORGE CADWALADER. One day in 1855, in Sacramento city, as George Cadwalader stood behind his rude mer- cantile counter, looking through the window, musing over the actualities of the past and the possibilities of the future, he said to him- self, "I will become a lawyer." He did not resolve upon sudden impulse, for that had been counter to his nature. Like most men of giant bodily frame, his physical movements were slow. Conformably, his men- tal processes were deliberate. He had long passed the age at which the average law stu- dent takes up the noble science. His sudden resolution to embrace the legal profession was a departure from an established law of his being. It proceeded from intuition, probably. If he had failed in his efforts to become a lawyer, we might censure him for not staying behind his counter. But, as he achieved suc- cess, we must be glad that he emerged from bags and bottles to enter, not a more honor- able, but a more delightful realm. George Cadwalader was born in Zanesville, Ohio, in 1830. His great grandfather, a na- tive of Wales, settled in Pennsylvania two years before William Penn, and lies buried in the churchyard at Chester, near Philadelphia. George was the first lawyer of his line, as far as it can be traced back. He received a com- mon school education in Ohio, and came with his father, and father's family, to California in 1849. The route was unusual and picturesque; down the Mississippi to New Orleans, thence to the mouth of the Rio Grande, thence across Mexico to Mazatlan, thence in a schooner to San Francisco, which was reached in July, 1849. The family settled in Sacramento, where the father died in 1879, aged seventy-nine years. The latter had been, at different times, a steamboat captain, a canal-builder and the owner of a flour mill. He was much given to the study of science. Young Cadwalader went at once to the p'incs. He was nineteen years old. The vir- gin sands panned out to him his share of gold, ?nd in two years he became a merchant. He went back to Sacramento and followed mer- cantile life until 1855, being once utterly ruined financially by the great fire of 1852. In 1S55, as stated, he determined to become a lawyer. It was a bold resolve. He was not a collegiate. He was twenty-five, and the year was '55; the Sacramento bar was then what it has never been since; that is, there were never so many bright minds at that bar as at that time. Mr. Cadwalader went to Colonel Philip L. Edwards, and said he would like to study law. Colonel Edwards encouraged him, told him to study — to read every book in his library, if lie wanted to. and when he wanted to ask a (|uc(c therefor. Those cu>itittics so voted, and in ci)mi)liance with law, Governor Latham for- warded to the President a statement of the result. He accompanied this with the paper referred to, wherein he examined the ques- tion as a lawyer and as a student of the Fed- eral Constitution. . He said he had no doubt the people of the State at large were against division, and they being the judges the mea- 476 History of ihc Bciicli and Bar of California. sure must be deemed impolilic, but that the legal and constitutional aspect of the measure was of the first importance. His views are very strikingly presented. Can a state be remitted to a territorial con- dition? If so, the legislature and congress can dissolve the Union! But remitting a rea- sonable portion of a state to a territorial con- dition is a very different thing; in time a new state would be developed. He clearly antici- pated by some years the case of Virginia, and concluded that a state could be divided, and a new state formed, and, a§ the greater include the less, a territory could be formed out of a part of a state. He further argued that the act of the California legislature con- senting to the division was valid, although never submitted to a vote of the people, and that the Federal Constitution (Article 4. Sec- tion 3) contains all the requirements for a division of a slate. Directly after the close of the extraordinary campaign which resulted in Latham's elec- tion as Governor, David C. Broderick, United States senator fell, "tangled in the meshes of the Code of Honor." The crestfallen friends of John B. Weller (whom Latham had de- feated in convention) looked with fresh hope to his probable return to the United States senate. But Latham again triumphed over him, and took Broderick's seat in that august body. The new Governor, two days after his inauguration, was elected in joint conven- tion of the legislature. United States senator for the unexpired term of three j'ears. The vote stood, Latham, 07 ■ Edmund Randolph (Douglas Democrat), 14; Oscar L. Shafter (Republican), 3. The Governor resigned three days later and proceeded to Washington. Right after the completion of his term as senator, Latham went to London and enlisted capital in the establishment of a new bank in San Francisco. Of this, the London and San Francisco Bank, he was the president from its foundation in 1864 until 1879. He then went into railroad enterprises, and lost his fortune. He died in New York City on the 4th of March, 1882, aged 55- A few years before his death a sale of his oil paintings in that city brought $101,315- Latham was systematic and diligent in busi- ness. When he lived in Sacramento, his will was made, with Judge A. C. Monson and John B. Harmon as executors. All his affairs were summed up on two pages and his accounts were straightened and books balanced daily. He was twice married, his second wife sur- viving him with several children. The mauso- leum of his first wife, and the exquisite fe- male figure in white marble, forever looking at the solemn sea, are the chief objects of mournful beauty in Lone Mountain cemetery. LEVI PARSONS. Levi Parsons died in New York on the 23d of October, 1887, at the age of sixty-five years. The eastern journals credited him with having been "one of the pioneer judges of the Su- preme Court of California." The fact is. Par- sons was never on our Supreme bench, nor did his ambition look that way. He was a lawyer, but attained no distinction as such. He was a district judge under the old system and in a brief tenure of the office attained distinction of an interesting and peculiar kind, lie was a California pioneer, and when the first legislature in joint convention, March 30th, 1850, elected the first district judges, Par- sons, at the age of twenty-eight, was chosen for the fourth, or San Francisco district. He received twenty-six votes against nineteen cast for Alexander Campbell, the veteran still livmg at Los Angeles. The legislators of that session who have since won celebrity voted for Camp- bell, namely, Broderick, McKinstry, De la Guerra, Randolph and Bigler. At the opening of the March term of his court, in 185 1, Judge Parsons delivered a charge to the grand jury, in which, among other things, he said that, while the liberty of the press was essential to the safety of free and popular institutions, yet, when that liberty degenerated into licentiousness, when it was prostituted to baneful purposes, so as to cither disturb the public tranquillity or to slander or libel individual character, the grand jury ought to interfere. The San Francisco Herald, in its issue of the following morning, contained an editorial under the title, "The Press a Nuisance," in which it referred to the queer things of the Judge's charge, and said that, "according to the report of the Judge, the papers of the town constitute a nuisance and should be pros- ecuted as such by the county authorities." The article went on to speak of the "judicial madness" of the time, and declared that "our courts cover crime with the folds of the er- mine ; they lift their impotent arms to scourge an unfettered press with rods of justice, as they style it. They drop the tears of a bastard mercy upon the robbers and the assassins who History of the Bench and Bar of California. 477 threaten our lives and our property; they turn with a scowl of wrath and an arm of vengeance upon the press which dares to com- plain of the tenderness with which offenders are treated. "If we err not, Judge Parsons was present in many of the scenes which passed before the City Hall some ten days ago. He may have observed the deep discontent with which the people listened to him when he coun- seled them to leave the prisoners, Stuart and Wildred, to the legal courts of the State. He may have heard the curses, not stjppressed even by his presence, uttered against the courts as now organized and constituted. If the Judge could hardly stand before the peo- ple when he appeared merely as counsel for the parties summarily arraigned before the people in mass assembled, how much weaker would he be if called upon to plead his own cause before an outraged and indignant pub- lic? If we were the guardian angel of the District Judge we would whisper in his ear, 'Beware !' " On the opening ol the court the same morn- ing. Judge Parsons made an order on John Nugent and William Walker, the last-named the famous filibuster of later times, editors and proprietors of the Herald, to show cause why they should not be punished for con- tempt. Walker appeared and was heard, through his counsel, Edmund Randolph and C. T. Botts, on a motion to discharge the or- der. The district attorney, Delos Lake, re- plied in support of the order. The Judge filed a written opinion of some length, over- ruling tlie motion to discharge the order. Walker then answered in writing, that he was the author of the obnoxious editorial and wrote it to promote justice, and he believed the facts stated therein were true, and the reference correct. Judge Parsons remarked from the bench that "this indelicate and im- pudent answer puts the matter beyond ques- tion as to the intent of the defendant," and that "the publication was a gross libel on the court.' He fined Walker $500, and ordered him committed until the fine was paid. The Icgislattire was then in session at San Jose, and Walker memorialized it for the im- peachment of Judge Parsons for gross tyranny and oppression. A special committee of the assembly reported that the Judge should be im])cachcd. The assembly did not adopt this report, but referred the matter to another com- mittee. This committee made a very ex- haustive examination, and two elaborately written reports, the majority concluding that there was no cause for impeachment, and the charges against Judge Parsons were dismissed on motion of Hon. Stephen J. Field. This early chapter in the California career of Levi Parsons faded to a shadow beside the history of his connection with the famous Bulkhead bill. The gigantic scheme was chiefly inspired by him, and his would have been the greater part of the wealth and politi- cal power which must have resulted from the enactment of the measure. It was before the legislature at several sessions. Finally, at the session of i860, it passed both branches of the legislature against the overwhelming protest of San Francisco, which it chiefly concerned. The bill proposed to give "to the San Fran- cisco Dock and Wharf Company (composed of Levi Parsons, Dr. H. S. Gates, J. Mora Moss, John Nightingale, Abel Guy, John B. Felton and John Crane) the right to build a bulkhead or seawall, with the necessary piers, wharves and docks, upon the water line of 185 1, with the right to collect dockage, wharfage and tolls, also to construct wharves and piers pro- jecting at right angles from the seawall to a length of 600 feet." Governor Downey vetoed and so killed this bill. His veto mes.sage which admirably reflected the sentiment of this people, declared that if the bill should become a law, "all com- mercial intercourse with San Francisco would be effectually cut off, or be carried on upon such terms as the Dock and Wharf Com- pany might dictate." There was a great dem- onstration of the people of San Francisco, en masse, in honor of Governor Downey, at his next visit to that city. Judge Parsons once had a controversy with Chief Justice Murray, and published a philippic against him. The authorship was attributed l)y many to Delos Lake. The Judge was educated at Union College, New York. He possessed a vigorous mind and had many good qualities of head and heart. As sponsor of the Bulkhead bill (al- ways styled the "Parsons Bulkhead bill), he became the bctc noire of the community. He always had large means, and his home for a long time was on California street, nearly op- posite Grace church, San Francisco. He re- moved from the State permanently in 1866, and lived (juietly in New York city. Three years before this, we conversed with him for the last time, in Virginia City, Nevada. He was in- specting tlio new mines with a view to invest- ment. 478 History of the Bench and Bar of California. His beneficence was far greater than was generally known, among his gifts to different institutions being one of $50,000 to Union Col- lege. He also endowed the Parsons Library at Gloversville, N. Y. Among the intimate acquaintances of his early years was the Duke of Wellington, and he was well known in European capitals, having crossed the Atlantic forty-two times. E. W. F. SLOAN. Edward W. F. Sloan was a venerated leader of the San Francisco bar for fifteen years. Like Heydenfeldt, Holmes and Pringle, and other first class legal minds that dignified the profession in this State, he was a native of South Carolina. He had adorned the bench there. He came to California, a highly edu- cated man and an experienced lawyer, in 185 1. Settling at San Francisco, he practiced alone for the greater part of his period there, but had an association in 1859-60 with S. M. Bow- man, at another time with Wm. H. Rhodes ("Caxton"), and, at his death, he had been in partnership for a few years with R. R. Provines. He died of pneumonia, at the age of 55 years, on August 25, 1866. His high character and standing were strongly and beautifully set forth in the memorial proceed- ings in the Supreme Court, at its next term, October i, 1866. At the opening of the Court, J. G. McCullough, attorney-general, addressed the Court as follows : "May it please the Court : Since our last meeting, E. W. F. Sloan has been summoned from this bar by death, and I invite your hon- ors to pay fitting homage to his memory. It seems strange and sad not to see the familiar form and meet the quiet smile of one who was so long a regular attendant at the sessions of this Court. There is no other to fill the ach- ing void. For, what one of his brothers in this State would hesitate to award to him the pos- session of a rare and happy combination of moral and mental qualities united in no other? And what higher tribute than this could be paid to the real worth of the deceased? Gifted with an intellect of the first order, he had trained it in the school of a severe discipline, and enriched it with an untiring culture. He was a lawyer of most profound research and of the loftiest attainments, and in our profes- sion was almost or altogether facile princcps. With a mind that was ever aiming after the truth and employing a logic that was wonder- fully simple and searching, his inquiry always was, not so much what is the law, but why is it so? With the nicest sense of honor, stu- diously true to court and client and opposing counsel, of incorruptible integrity, he was a bright ornament in the foremost ranks of the legal profession. As a general scholar he had devoted himself as his labor would permit to literature, the arts and the sciences, and had gathered learning and garnered gems from e\ery department. As a citizen he religiously fulfilled his every duty cheerfully. As a man, his kindly heart, his genial manners, his uni- form courtesy, his unostentatious bearing, his retiring habits, his native modesty, his simple sublimity of character, won bench and bar, lawyer and layman, and challenged the ad- miration of all. "But he is gone, and I but respect his un- affected dislike of all parade by being brief on this occasion. A great lawyer, a good cit- izen, an honest man; a pure Christian, has died. This is his greatest praise, as this was the involuntary tribute of all who knew him when his death was announced. Be it ours to iinitate his example ! By request of the members of the San Francisco bar, I move your Honors that the resolutions adopted at a meeting thereof, and which I now present, may be entered upon the minutes of the Court, in honor of the lamented deceased." The resolutions of the bar meeting were as follows : "Whereas, It has pleased Divine Providence to remove by death our friend and brother, E. W. F. Sloan, we, the members of the bar, as- sembled for the purpose of paying a tribute to his merit as a lawyer, and expressing our sor- row at his loss, do adopt the following resolu- tions : "Resolved, That, in the death of our brother, the profession has lost one of its ablest and most learned members, one who through a ca- reer coeval with the existence of the State, was always distinguished for intellectual at- tainments of the highest order, for unswerv- ing integrit}'. and for uniform kindness and courtes}- in all his intercourse with his brethren of the bar. "Resolved, That while we deplore the loss of this ornament to his profession, we take occasion to recall to mind for imitation his studious habits, his unaffected, genial man- ners, his ([ualities of untiring industry and courtesy of deportment, his delicate sense of honor, and his profound yet varied learning. "Resolved. That while he possessed a public reputation and displayed a legal abilitj' which placed him in the foremost rank of the pro- fession, he uniformly manifested in all the pri- vate walks of life an unostentatious simplicity of character which endeared him to his friends and commanded universal admiration and re- spect." After the remarks of the attorney-general, and the reading of the resolutions, the Chief Justice. Hon. John Currey, made the following response : "The members of this Court cor- dially unite with the bar in commemorating the excellence and worth of our departed brother. At the time of his death. Judge Sloan had been a resident and citizen of the State for more than fifteen years. Soon after his arrival on these shores his ability and charac- ter as a lawyer became known, and he at once took his place in the front rank of tlie profes- sion, and maintained that position with honor History of the Bench and Bar of California. 479 to the end of his career. He was a man gifted by nature with more than ordinary capacity. His mind was early improved by a Hberal ed- ucation. He was known to those most inti- mate with him as possessing high attainments in the departments of natural philosophy, his- tory, and the exact sciences. His learning in common law science was perhaps superior to that of any other man within the, State, and no one among us better understood than he the doctrines and principles of equity juris- prudence. With all his ability and learning he was, in his intercourse with his fellowmen, uniforml}' modest and unpretending. There was nothing offensively aggressive in his na- ture. As an advocate he won his way by the force of his reasoning and the truths which he uttered. In the statement of legal prop- ositions, he always aimed to be true to the letter and spirit, and, in relation to facts, he was never known to any of us to deviate from a scrupulous exactness. He was a man of in- tegrity, honest with himself and with all men. Since the organization of this Court no term of it has passed which he has not attended. He was employed in many of the most import- ant cases that have, during the incumbency of the present bench, been submitted to and passed upon by it, and how well he acquitted himself, his arguments reported in the vol- umes of decisions will bear testimony. He had the respect and confidence of the Courts and of his professional brethren throughout the land, as also of all good men who enjoyed his acquaintance. It is due to ourselves and to those who may fill the ranks of the profes- sion hereafter, that his name should be pre- served in respectful and affectionate remem- brance ; and, as a permanent testimonial to that end, the proceedings this day had will be entered upon the records of the Court." —THE EDITOR. i VETERANS SURVIVING :^ :^ IN 1900 ^ J* I (S» tfcife A aSa (t) & HISTORY of the BENCH and BAR of CALIFORNIA VETERANS SURVIVING in 1900 JOHN CURREY. John Currey was a justice of tlie Supreme Court of California from the first day of Jan- uary. 1864, for the term of four years, and for the last two years thereof was the chief justice of that court. For more than twenty years we have en- joyed a friendly acquaintance with him, and during that time have incidentally learned from him much of himself and his family his- tory. In a conversation with him some time ago respecting this new history of legal and judicial matters covering the period of the last fifty years in this State, we told him it was our intention to write our personal sketches of some of those who had been prominent as lawyers, and in some cases, judges, during this neriod, and among them a sketch of his own life and career. To this he answered that there had already appeared in our book of sketches of "'Bench and Bar.'' published some years ago. a notice of himself. He seemed to tliink tliere was no good reason for writing him up again, saying that more of conunon])lace matter had been written about him and printed in the newspapers and pe- riodicals of the day, than was altogether agree- able. We told him we could not relinquish our l)urposc of writing a sketch of him as a pioneer who had I)een fnmi the beginning a part of the legal and iudirial history of this State, and we furtlier said that in sketches of the kind which we proposed to write, it was usual to say something of family history. To this he replied that the sketches which he had read were generally unnecessarily prolix and minute in the detail of facts and circum- stances of no particular interest to the general reader ; and he then said if it was our fixed purpose to write of him again, he would request that we say no more of family his- tory or of his anabasis from his beginning on through life to the present time of his ad- vanced age than we might deem necessary for the purpose of our sketch. To this we readily agreed, and here follows the narrative as it came from him : John Currey's ancestors on the father's side were the Curreys, the Moores. and the Chan- nings ; on the mother's side, the Wards, the Fowlers, and the Drakes. One of these fami- lies was Scotch, the others English. The emi- grant of each fatnilj' came to America as early as 1680. Of his ancestral generations, lineal and collateral, who lived in the time of the War of the .Vmerican Revolution, some were on one side of the absorbing (piestion of that day, and some were on the other. He says that so far as he knows their history, they were a brave and law-abiding people. There were no criminals or idiots or insane persons among them. His father was esteemed by all who knew him as .a man of intellectual force and sound judgment, and of unswerv- ing integrity in his dealings with men. His mother was a woman of an affectionate and benevolent nature; always kind to the desti- tute ])oor, and to all in trouble. She pos- sessed a remarkable memory of persons and tilings of her earlier life. Of the stirring in- cidents of the war her mind was a storehouse of traditions. Both were born during the period of the war, in Cortland Township, Westchester county. New York, near the vil- lage of Peekskill. in that township, and within 484 History of the Bench and Bar of California. about ten miles of West Point, which is in the midst of the Highlands of the Hudson river. All of that country was throughout the war-time of those years one of the cen- ters of cruel war disturbances. From a small beginning as a farmer his father, in the course of years, acquired large real estate possessions. Oh their farm there his parents lived their long lives, each to the age of nearly ninety years. There Judge Currey was born, in Octo- ber, 1814, being the youngest and now the only survivor of a large family of children, all of whom were persons of exemplary lives. There he grew to manhood, blessed with a vigorous constitution, inherited from his par- ents. There he performed his share of the labors on the farm, until he left home and passed through several academies and entered college, where he remained until he acquired a sufficient amount of classical learning to en- title him to a reduction of four years from the term of seven years required of a student in a law office before he became entitled to ad- mission to the bar as an attorney at law and solicitor in chancery. In September, 1839. he became a bar stu- dent under the tutorship of the Hon. Wil- liam Nelson, an eminent lawyer, who recided at Peekskill. With him he remained three years, and then, upon an examination, was ad- mitted to the bar. After three years of prac- tice as attorney and solicitor, he was again examined and passed to the degree of coun- sellor, which entitled him to appear in the highest courts of the state in the argument of causes on appeal. After nearly seven years of successful practice, a part of the time at Peeks- kill and a part of the time in the larger field of Kingston, in Ulster county, he resolved to migrate to California, and thereupon, on the last day of June, 1849, he started on his voyage via the Isthmus of Panama, arid reached San Francisco on the i8th of August, of that year. After a visit to the gold diggings, he re- turned to San Francisco, and in December opened a law office and practiced his profes- sion until in February, 1851, when he visited his old home and friends in New York. His visit there being over, he returned, bringing with him his good wife and little son, their first born, arriving at San Francisco in the latter part of June, to find the city destroyed by the two great fires of May and June of that year. This condition of things determined him to remove to the country, where he had done some professional business before. They made Benicia their residence. That place was then the headquarters of the United States Army on the Pacific, and the depot for the ships of the Pacific Mail Steamship Company. It was the county seat of Solano county, one of the counties of the Seventh Judicial Dis- trict, which comprised within its limits the present counties of Contra Costa, Solano, Xapa, Lake. Marin. Sonoma and Mendocino, a held of vast resources and enterprise. He soon obtained a large practice, which so in- creased in volume as to require about all he could do to properly manage and dispose of it. His business was general in its scope. Land litigations were the most important, and con- tinued for eight years or more before the Spanish and Mexican land titles were settled under the act of congress of March, 1851, rclatiup- thereto. He says his country practice, laborious as it was, was agreeable and pleasant. The stated terms of court, friendly bar, and an able and learned judge, who held the scales of justice even, as Judge McKinstry did, and juries composed of intelligent, patient and honest men — all contributed to make the practice of the law pleasant in those days. During the years of his country practice, from the beginning, until 1864, he did a large business in the Supreme Court. This period covered the time when, among others, Jus- tices Murray. Heydenfeldt, Field and Bald- win, were on the bench. In 1861 he removed to San Francisco, where, and at the same time in the country, he tried many cases, some of much importance. In 1863 he was elected a justice of the Su- ])reine Court. His work as a member of that court is a matter of record which speaks for itself. After his retirement from the bench he practiced law for about eight years, pleas- antly associateu with Oliver P. Evans. Dur- ing this period he became partially blind by reason of an acute inflammation of his eyes, which rendered it necessary for him to retire from the active business of a professional life, greatly to his disappointment. Of the children of his household there were four, three of whom grew up to and beyond the age of legal majority. Each of these re- ceived a liberal education. One of his sons graduated at Williams College, the other at Yale, and the daughter at a high school in New York City. Three of his four chil- flren. and their kind and devoted mother, have History of the Bench and Bar of California. 485 gone on from earth. One only remains, his son, Robert J. Currey, the solace and com- fort of his declining life. We have closed the narrative, and now, without attempting an elaborate delineation of his character as a lawyer or otherwise, it may be said the qualities and attributes that most distinguished him in his active life were the soundness of his judgment and logical reasoning powers, his tenacious memory, his integrity of purpose and steady loyalty to principle and right, according to the impetus of conscience. So long as there was any- thing to do in the examination and prepa- aration of a case for trial or argument, his industry was untiring, the consequence of which was that he was always ready for the fray. In the presentation of his case to court or jury he was earnest and direct, and lost no time. Aside from his study and the practice of the law, he found time to devote to the reading of history, biography, essays, poetry and tht current literature of the day. Sound health, regular habits and a patient industry enabled him to give a portion of his time to other things than jurisprudence, which was the ab- sorbing study of his entire professional life. In his intercourse with his friends and ac- quaintances of the bar and others, he was cordial and buoyant in spirit, enjoying with them the recitals of the ludicrous and ridicu- lous incidents of California life, as well as indulging in the discussion of business inter- ests or political and governmental affairs. Those were the young days of California, and the people were then young and active, cheer- ful and hopeful. In politics Judge Currey was a Whig, and so continued as long as there was a Whig party. For a time he was without a party. He was always an anti-slavery man in con- science, but not an abolitionist in any party sense. He was opposed to the extension of the institution of slavery, and when the slave propagandists of Kansas and elsewhere un- dertook, in 1857 and 1858, to make slavery an institution of Kansas against the will of a ma- jority of the people of that territory, he joined the i)arty led by Senator Brodcrick. in op])o- sitiiui to the pro-slavery clement in this Slate, which was giving its moral and political sup- port, as far as it could be done by them, for tlic ])ermaiient establishment of slavery in Kansas. At that date nearly two-thirds of the voters in this State favored the slavcrv side of the question in Kansas, which was disturbing the whole country from center to circumference. In 1858, and also in 1859, his name was placed at the head of the ticket of this newly constructed anti-slavery extension party or Free-state party. But in the election of that year, though he polled the full strength of his party, and even more, he suffered the fate of minority parties everywhere. Beaten, but not conquered, his party retired for the time, with their flag flying and their arms at their side. Judge Currey claims that the ef- fect of these campaigns of the party to which he belonged, saved the State from seceding in 1861. He says this is the logic of the then existing condition of affairs, which he believes will be recognized in history yet to be written. In 1870, after his retirement from public life, Williams College conferred on hirn the honorary degree of Doctor of Laws, and in 1897, while in New York, he became a mem- ber of the Empire State Society of the Sons of the American Revolution. In passing to the close of this sketch it is proper to say that Judge Currey never had any inclination for gambling, and never knew a gambling card game. He says he never used profane language on any occasion or un- der any provocation ; that the command, "Thou shalt not take the name of the Lord, thy God, in vain." was always before him. Now, in the evening of life, he still finds occupation in pursuits of law and literary studies, and in governmental and political af- fairs, as also in the cultivation and improve- ment of his farm, for wliicli ho believes he has an inherited taste and inclination. There has always dwelt a good deal of hu- mor and poetry in his soul. He is a man of (|uicl tastes and bearing, but never sequesters himself. He is approachable, not impulsive nor magnetic. His strong side is judgment, yet by appeals to his heart he has been im- posed upon time and again, and he has de- clared to us that he never expects to be able to overcome this weakness, as he calls it. He is re.illy a magnanimous man and a firm friend. Judge Currey's delight is the society of ihougluful men — men of moral and intellectual worth. Jle is a philosopher of the Emerson .school. From what has been said of his mem- ory and other attributes, it can be readily seen that there is much of entertainment and instruct ion in his conversation. 486 History of the Bench and Bar of California. AXXIS MERRILL. In the summer of 1900 we ventured to refer to this gentleman as the patriarch of the Cali- fornia bar. But he declined the compliment in favor of Judge John Currey. and a few others. His professional life has not been so lengthy or so active, or so conspicuous, as those of Judge Currey and some others, chiefly because he was himself pleased to end it so very long ago. He was born in 1810. on the 9th of Sep- tember (Admission Day!), and at the age of ninety, he is still light of foot and heart — and safe in counsel, too; for. even professionally, he is not secluded ; there are men of substance who seek him in his home, and take his sage advice. We met him first in 1866. It was in the office of Eugene Casserly. at San Francisco. He was even then practically retired, but had not closed his office. Mr. Casserly introduced him to an attorney who had been in the prac- tice in that city for some years, and who in- quired what was Mr. Merrill's line of busi- ness. The well-read Casserly answered before Mr. Merrill could speak, "He is a lawyer, and has been in full practice here, and in Boston before he came here. You will find his name scattered over the Massachusetts Reports." "Before leaving Boston," he said to us. "I enjoyed a fine practice for some years. I gave this up and went away because of the north- east winds, which were very injurious to my health. Over thirty years after this first meeting. in a talk which we had with him, the old bar leader, so long hidden from the professional eye. became reminiscent. "I was a professor of Latin and Greek for six years. 1836 to 1842. in McKendree Col- lege, St. Clair county. Illinois. After my res- ignation I received from the college the degree of LL. D. "I arrived in San Francisco in 1849, and began the practice of law in the same year. I cleared twenty thousand dollars the first year I was here. My offices at that lime com- prised two little rooms in the City Hotel, at the southwest corner of Clay and Kearny streets. My rent was $275 a montli, payable in advance. "Lloyd Tevis told me once that lie went to London to try to sell the Ontario gold mine, located in Utah ; that he used all his arts in trying to sell it. but in vain : that he and Haggin then went to work and developed the mine, and it had since yielded eight millions of dollars in dividends ; he had offered it in London for two hundred thousand dollars. "About three years after Haggin and Tevis had removed to San Francisco from Sacra- mento. Tevis said to me that he brought with liim from Sacramento $130,000 in coin, made in money-lending there, and that this sum liad brought him in three per cent per month for the three years he had been in San Fran- cisco. "William Sharon was misunderstood and misrepresented. He hated a liar, and was him- self one of the most truthful of men. He had his desk before he entered the board of brokers in my law office. I was his adviser, and he used to bring his customers to me to receive advice. In the palmy days of the Belcher mine, located at Gold Hill, Nevada, he told me in San Francisco that the stock was going up in value, and advised me to purchase. I said, 'Buy me $ro.ooo worth, Mr. Sharon.' He did so. About three years afterwards he advised me to sell. I said. 'Sell mine for me, Mr. Sharon.' He sold. I made a good profit. Be- fore he sold his own stock he received in dividends from the Belcher mine five hundred thousand dollars a month for a year and a half or more. When he told me this, he said that he was at the same time receiving si.xty-three thousand dollars a month from the \'irginia City & Truckee Railroad. 'And I built that road,' said Mr. Sharon, 'without its costing me a dollar.' The counties through which the road ran had given subsidies. If I recollect rightly, bonds had been issued by the company, and Sharon held or sold the bonds. He also told me that he then had con- trol of twenty-five millions of dollars. ".\ few years later he said he had met heavy losses, and was then worth fifteen millions. "Many people have believed that Sharon owed his rise to William C. Ralston (that Ralston made Sharon). "Ralston did not make Sharon. Both were self-made men. I knew their relations to each other. "Long before he became so rich, Sharon informed me one day that he had lost all he had. I held his note at that time for fifteen thousand dollars, indorsed by J. D. Fry. It was ])aid at maturity. "To revert to the agency at Virginia City: When a loud complaint was made by the stock- holders of the Bank of Calift^rnia in San Fran- cisco, that the bank w^as speculating in the Annis Merrill History of the Bench and Bar of California. 489 Virginia City mines, the bank stopped such operations there, and Sharon individnally took the mines. He told me that he had a written report of the condition of every mine tliere and in Gold Hill laid on his table every after- noon at five o'clock." Mr. Merrill was born at Harwich, Massa- chusetts. When a child, he did not live long in any one locality, his father, Joseph Annis Merrill, being an .tinerant Methodist clergy- man. He was better informed as to his birth- place, however, than was that other child, a little girl of like parentage, who, on being- asked where she was born, answered, "I was not born anywhere in particular ; my father was a Methodist minister." Rev. J. A. Merrill entered the ministry at the age of eighteen, and followed it faithfully for fifty years, until his death in 1849. He was devoted to the cause of education, and was one of the founders of Wilbraham Academy, the first institution of learning successfully es- tablished b}' his denomination in America. We have read that he was a "powerful preacher and a critical scholar," and that he was chap- lain in the celebrated fighting regiment of Col- onel Binney in the War of 1812. His father had been a soldier in the American army throughout the Revolutionary War, and wit- nessed the surrender of Cornwallis at York- town. The Merrills trace their ancestors to England, and more remotely to the Htigue- nots of France. Annis Merrill's mother was Hannah Jeweti, the daughter of a Baptist minister of Cana- dian-English descent. She has been repre- sented as "devotedly religious, well educated, poetic in temperament, and lovciy in person as well as in spirit." Mr. Merrill after some years at the common school, entered, at the age of ten, Newmarket Academy. Between the ages of twelve and fourteen he worked in a tannery at Wilbra- ham, Massachusetts. He worked at various laborious callings for some years more, and taught school in winter. In his twenty-first year he entered Wesleyan L'nivcrsity and cnm- plctcd the four years' course. He began the study of law. and removed to Louisville, Ky., where he received a call from McKendrec col- lege, at Lebanon, Illinois, to the professorship of Latin and Greek. He accepted, and devoted seven years to the duties of that position, teaching also political economy. He gave his spare time to reading law. He was admitted to the bar of Illinois Supreme Court in 1843, and, resigning his professorship, he began the practice of law at Belleville in that state. A year later he went back to Boston, and formed with his brother the law firm of A. & A. B. -Merrill. His biographer, in Bancroft's "Chron- icles of the Builders," says : "The most conspicuous incident of his prac- tice in Boston was his connection with Rufus Choate in the celebrated case of the Common- wealth of Massachusetts versus Albert Tirrel, his client, tried first for murder and after- ward for arson, and acquitted on both charges. The defense set up was that if the accused committed the deed, he was in a somnambu- listic state at the time of the act, and there- fore not morally or legally responsible. The plea was a novel one, never offered before, perhaps, nor since, and extraordinary ingenuity was required to maintain and establish it. Mr. Choate's argument was, of course, masterly, while he is reported to have remarked to his associate counsel, Mr. Merrill, whose argu- ment, reported in substance in the Boston press, evinced great legal ability, and profound study of the science of human pathology: "Publish this case, and it will immortalize you." Mr. Merrill arrived in California on the i8th of August, 1849. It will certainly interest the profession if we again quote his biogra- pher, who had evidently studied the mature lawyer and enjoyed his conversation: "He had enjoyed the benefit of a home fa- vorable to the formation of character ; he had availed himself of his opportunities to acquire the rudiments of English ; in the school of manual labor he had obtained a sure means of support; the privilege of liberal culture, the result of his own toil, he had appreciated and utilized; after seven years' experience as an educator of young men, he had entered mind and soul into a profession held in esteem by many good men. His habit was, like Webster, first to reason out a case on elementary prin- ciples of law as the foundation, and then to use authority or precedent in framing the su- perstructure of his ;irgument. The reverse of this, which is so nnich in vogue in the prac- tice of the present day, that is. of striving for a decision primarily upon the weight of au- thority, he never could consider the true or intellectual method. He attributed his suc- cess to work, for he was wont to say: 'What- ever talent the l;iwyer may possess, he can- not succeed eminently without thorough prep- aration.' He laid great stress upon integrity 490 History of the Bench and Bar of California. in the practice; for, 'ultimately.' he said, 'the more conscientious the lawyer, the more suc- cessful he will be.' To his profession he paid this glowing tribute: 'As a class, lawyers are as honorable and conscientious as scholars or ministers of the gospel ; the moral courage they exhibit at times in their loyalty to clients, at whatever cost or sacrifice, rises to the sub- lime." " On his way to this State. Mr. Merrill, on the isthmus, became acquainted with an attor- ney from Detroit, John McVickar. On arrival at San Francisco, the law firm of Merrill & McVickar was formed, and did a large business until Mr. McVickar's death, in 1854. xMr. Merrill practiced alone for about five years, and then had a few years' partnership with R. P. Clement and Martin White. Since this ended, about the opening of the year 1864, he practiced alone and quietly for a few years, and gradually closed up his business. Mr. Merrill has been an active worker in the cause of temperance all his life since the age of sixteen. He believes that women should be allowed to vote, if for no other reason than they would generally vote for men who would enact and enforce temperance laws. He is not severe, hardly, on this question, but practical and charitable. It is said that his religion has always been the source of his enthusiasm in all his other works. He has been a stanch Methodist since boyhood. To the Bible he has given his best study. For more than thirty years he has been president of the California Bible Society. "To the work of secular education." to quote once more, "he has been not less devoted, be- lieving that knowledge acquired from profane literature is not only valuable on account of its temporal uses, but that the greater the enlightenment of the mind the clearer its com- prehension of those truths whicli appertain to the hereafter." We have referred to Mr. Merrill's continuing good health and his alertness of movement. It is his daily morning practice, begun some years ago, to ride on the bicycle for many miles. He has his "wheel" in keeping at the great park. About nine o'clock he goes thither by street-car and there mounts his vehicle, rid- ing through the park to the ocean, and soon returning by the same route and in the same way to his home on Jackson street, near Ma- son, having traveled about four miles by car and about double that distance on "wheel." Mr. Merrill married at Middletown, Conn., in early manhood. Miss Harriet Maria Sage. It would be taken for granted that he is a widower now. But they were one through a long stretch of time. She was a woman alto- gether worth}' of such a man, and died in 1892. at the age of 75. There was no issue of this union. E. W. McKINSTRV This eminent juri.st who has filled so large a place in our history, came to California in June, 1849, and as late as 1900, just before this history was printed, the Society of Cali- fornia Pioneers at San Francisco made him their President. We observed of him in 1888, when his period on the Supreme bench about doubled that of any other man, that he had been the voice of the court in the adjudica- tion 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 were the local option case of 1874, the Kearney habeas cor- pus of 1878, and the water rights case of 1886. And we added that by reason of length of service and enduring work, he had made a name that would probably live longest of all on the shining roll of our judiciary. Our pioneer was in law practice at Sacra- mento in 1850. He was in our first legisla- ture, representing Sacramento in the lower branch, P. B. Cornwall being one of his eight colleagues. By the next succeeding legisla- ture he was elected adjutant-general at the age of twenty-four years. He never entered on the duties of this of- fice, as the legislature failed to provide a sal- ary for the incumbent. He opened a law office in Napa, early in 1851. He was elected dis- trict judge in the fall of 1852, for the district comprising Napa and contiguous counties, and was re-elected in September, 1858. On Novem- ber 13, 1862, he resigned. In 1863 he was the Democratic candidate for lieutenant-governor, and was defeated, with his ticket. He went to Washoe in the flush times, and in 1864, he and John R. McConncll and W. C. Wallace (not W. T.) were the Democratic nominees for supreme justices of the state of Nevada, all being defeated. Returnmg to California, and locating at San Francisco, he was, in Oc- tober, 1867, elected by the Democracy county judge for a term of four years, from January I, 1868. In October, 1869, he was elected judge of the Twelfth District Court, as an In- dependent candidate, over the regular Demo- I E. W, McKinstry History of the Bencli and Bar of California. 493 I cratic nominee, K. R. Provinos. In 1873. again as an Independent candidate, he was elected a justice of the Supreme Court over Samuel H. Dwinelle, Republican. On September 3, 1879, under the new constitution, which, among many other things, reorganized the Su- preme Court, lie was re-elected a justice of that tribunal, and under the classification bj- lot, which the constitution directed, he and Hon. J. D. Thornton drew the longest terms, eleven vears each. Judge McKinstry was born in Detroit, Micli- igan. He registered as a voter in San Fran- cisco, in July, 1867, as being then forty-one years old. Judge McKinstry wrote the majority- opinion (4 to 3) of the State Supreme Court in the great water rignts case of Lux vs. Haggin, in Mav 1885 ; and the majority opinion of that court (also 4 to 3) on the first appeal, in the Sharon case, February i, 1888. He resigned from the Supreme bench on October I, 1888, to become professor of municipal law in the Hastings Law College. Since 1890 he has been engaged in law prac- tice. After practicing alone for some years, his son, Mr. James C. McKinstry, became his partner. In 1896 these gentlemen united with Hon. John A. Stanly and H. W. Bradley, under the style of Stanly, McKinstry, Brad- ley & McKinstry. Since Judge Stanly's death (September 22, 1899) the firm has been Mc- Kinstry, Bradley & McKinstry. In the case of the People vs. Charles Fritch, where the defendant had been convicted in the San Francisco Police Court of keeping a theater open on Sunday, contrary to the statute then existing, and which case was brought on appeal before Judge McKinstry while he was county judge — that jurist, in rendering his de- cision, made the following remarks : "I confess that I approach the question pre- sented in this case with a feeling of repug- nance to such legislation as tliat upon which tiiis prosecution is founded. Indeed, if the constitutionality of 'Sunday laws' were a new question, I should hesitate to sustain them. Strictly speaking, no form of religion is tol- erated in California. By the terms of the con- stitution, 'The free exercise and enjoyment of religious profession and worship, zeitliotit dis- criiniihition or preference, shall forever be al- lowed.' It is the alisolute rigiit, therefore, of ever}' citizen to worship God according (o the dictates of his own conscience, and to keep holy such days as his own religion may sanc- tify; and it would be difficult to convince an 'orlliodo.\' Jew, for example, who has ab- stained from secular employment on Satur- day, that a law which compels him to refrain froni like employment on Sunday gives no preference to other forms of religion. Cer- tainly, all arguments based upon the supposed physical benefits derived from a stated day of rest would have little application or ground for enforcing a 'Sunday law' upon one who has taken his rest on the preceding day. But there are some propositions which should never be urged in an inferior court. The County Court should not be called upon to consider as doubtful a question clearlv determined by the iiighest tribunal of the State. Were I permitted to declare as law my own crude notions or well considered opinions, I might feel authorized to decide that the constitu- tional provision which gives to this court ju- risdiction of actions of 'forcible entry and de- tainer' does not empower a landlord to bring suit here against a tenant who peacefully holds over his term ; or. that congress had no power to make the paper know^n as 'greenbacks' a legal tender: and the absurdity of such iudg- ments, in the teeth of the decisions of the Supreme Court, would be sufficiently apparent. My duty is simply to obey the adjudications of that tribunal. Were an inferior judge to substitute for these his personal convictions of what the law ought to be. this would be not only an act of singular audacity in itself, but would destroy the symmetry of our judicial system, and introduce confusion, delay and in- creased expense in the administration of jus- tice, and bring upon his head the deserved censure of the court of last resort, whose opinion he has treated with contempt. The legislature may change the law; the Supreme Court may alter its opinion as to the proper construction to he given to the constitution or to a statute ; the County Court can only follow in good faith the judgments of the appellate court. Again, it is urged that as the Supreme Court in ex parte Xezonan (g Cal. ) held the law of 1858 to be unconstitutional, both that and the law of 1855 ceased to exist from the date of that decision ; and it was not competent for the same court to revive them by a subse- quent decision reversing the former one. This is a misapprehension of the function of ju- dicial tribunals. Courts never repeal laws, never legislate. They are organized to try cases, and in passing upon an issue between individuals, or between the State and an in- divi(lu;il. a court only inquires what is the law. To say that because, in a given ca.se. the Supreme Court declared the law (Mie way. it is forever debarred from holding the law. applicable to the same or similar facts, to be otherwise, would be to demand a degree of consistency, wlnrli ,1 glance at the reports will show has not heretofore been deemed neces- sary, and nnght be considered an miwarranta- ble interference with the privileges of llio.se who in the future may be called to preside over (he paramount tribunal. The Supreme Court, in short, has always the power to re- verse every previous dcci'iion. including its 494 History of the Bench and Bar of California. own; the last judgment of the court being the law of the land." In the case of Frederick R. Lane, indicted for the murder of Harvey Swift in a saloon on the Potrero in San Francisco, March 13, 1872, the trouble grew out of a dispute about cards. Lane was tried before Judge McKin- slry and a jury in the old Twelfth District Court, and was convicted of manslaughter. He was sentenced on December 30, 1872, to a term of five and a half years in the state prison, and Judge McKinstry in passing sen- tence expressed his disapproval of the law which permitted persons accused of crime to testify in their own behalf, as, he said, it placed the accused in a wrong position. They feel that if they do not testify it will be con- strued against them, and if they do testify they are very liable to exaggerate or to. com- mit downright perjury. 1 he Board of Supervisors of San Francisco in September, 1891, called for the opinion of Judge McKinstry as to the powers of the State Board of Equalization to increase the assessment-roll of the city for city purposes. Judge McKinstry filed his opinion on Septem- ber 18, 1891. and held that the State Board had no power to increase the assessment-roll of San Francisco, so as to affect taxation for city and county purposes ; and that the city and county officers, in their several acts lead- ing to the collection of taxes for city and county purposes, must be guided and con- trolled by the assessment-roll, unaffected by any increase of the valuations therein by the State Board, for purposes of State taxation. 'j'liis <)])iiiion may be found in the San Fran- <:isco Municipal Reports for the year i890-'yi — in tile .Appendix, at page 181. Judge McKinstry was educated in Michigan, Kinderhook. N. Y., and Gambier ( Kenyon College), Ohio, and was admitted to the bar in Xew York in 1847. The degree of LL. D. was conferred on liim by the University of Michigan. The grandfailier of tlie Judge. General Charles McKinstry, of Hillsdale, was an offi- cer of the New York troops in the Revolu- tionary War, and his grand-uncle was a col- onel in the same war. The Judge is de- scended thront;li liis niotlier from Governor Bradford. John .\lden. and otlier passengers of the Mayflower. lie is a member of the "Mayflower Descendants." of the "Colonial Governors." and of the "Society of Colonial Wars." He is an ex- President of the San Francisco branch of the "Sons of the Ameri- can Revolution." His father. Colonel David C. McKinstry, was a pioneer of Michigan, having settled in Detroit as early as 1816. He was long a distinguished citizen of the northwest. Of the sons of Colonel David C, other tlian the Judge, Charles became a well-known and accomplished lawyer in New York City ; James P. was a commodore in the navy, and was des])erately wounded at Port Hudson ; and Justus became a general in the army. Judge McKinstry was united in marriage to Miss Annie L. Hedges, at Marysville, Cal., on the 27th of July, 1863. Mrs. McKinstry is con- nected with the Schuyler, Van Rennselaer, Leon Gardiner, Livingston, and other noted ante- Revolutionary families. The children of this union, besides the Judge's law partner already named, are two daughters, and Captain Charles H. McKinstry, of the U. S. Corps of Engineers. Judge McKinstry delivered the annual ad- dress before the Society of Pioneers at San Francisco in September, 187 1. and the address at the Jubilee Celebration at San Jose, on December 20, 1899. NILES SEARLS. The chief justice of the California Supreme Court for the years i887-'88 was born in Al- bany county. New York, December 22d, 1825. His father was a farmer in easy circum- stances, and of pure English extraction. His mother was a Miss Niles, of a well-known family in his native county, the Nileses being of Scotcli descent, .\bram Searls, the father of Xiles Searls, removed from New York to Prince Edward District, Canada, where he purchased land and settled with his family. Niles Searls attended school in Canada, mainly at Wellington, in Prince Edward's county. .After five years' study, his father sent him, at his own recjnest, back to his native county in New \'ork, where he attended the Renn- selaerville Academy for three years. He then entered the law office of O. H. Chittenden of Rennselaerville, where he remained one year I)re])aring himself for the profession. Just at that lime JoJm W. Fowler, a noted lawyer and orator, established at Cherry Valley. New York, the State and National Law School, an institution which for many years cut a con- spicuous figure in legal annals. Some of the liest minds of the California bar were trained History of the Bench and Bar of California. 49; at this school. Among Mr. Searls" fellows were Hon. Chancellor Hartson. and ex-Lieu- tenant Governor Machin. Judge Silas W. San- derson and the late Judge Brockway after- wards attended the same school. Mr. Searls was graduated from this institution after two years' study. His old schoolmates speak of him as having been an indefatigable student and one of the brightest minds of their class. He excelled in mathematics and scientific branches of study, and was an onmivorous reader. He was admitted to the bar of the Supreme Court of the state of New York, May 2d, u^-i8, and went traveling through Kentucky, Illinois and Missouri, practicing a short time in the latter state. He arrived in California in October, 1849, and located at Nevada City. Judge Searls had been in Nevada only five days when he foitnd himself a candidate for alcalde. But he was defeated by ten votes of several thousand cast. In 1852 Mr. Searls was elected district at- torney of Nevada county. In 1855 he was elected, on the American or Knownothing ticket, district judge of the Fourteenth Judicial district, comprising the counties of Sierra, Nevada, and Plumas, and served a full term of six years. He was renominatetl by the Democrats, and was defeated by Hon. T. B. McFarland, now an associate justice of the Supreme Court. In 1864 he closed his law- business and went back to New York, where he followed the life of a farmer for six years. In 1870 he returned to his old moun- tain home in California, and resumed the ])ractice of his profession. In 1877 he was elected to the State senate on the Demo- cratic ticket, and served for one session, his official term l)cing abridged by the new con- stitution. .\ political foeman to Governor Perkins, he was yet appointed by the Ciovernor a niend)er of the Debris Commission, and was President of the board when the act creating it was declared nnconstitulion;il. in 1S80. In the spring of 1885 Judge Searls was ap- pointed by the Supreme Court one of the three Supreme Court Conunissioners. under ;in act of the legislature then recently .-ii)provr(l. I lii> commission was an auxiliary court in iiiieiu and effect, and was cre.-iled on account ot tlie accumulation of business in our liigheNl tribu- nal, threatening to block its action. The Jitdge had labored most efficicinly for two years on this conimisNion. when, on .\]iril m. 1887. he accepted from ( iovernor li.irtlett llie ai)|)oint ment of chief justice of the Supreme Court, made vacant by the death of Hon. Robert F. Morrison. He served until the close of 1888, being de- feated for chief justice at the election in No- vember, 1888, by W. H. Beatty, Republican. He was again a Supreme Court Commissioner for the years 1894-97. He is now residing at his old home m Nevada City. Judge Searls married, in his native county, in 185,^. Miss Mary C. Niles, sister of his lasL law partner, .\ddison C. Niles, who was a jitdge of the Supreme Court, i872-'79. He has two children, sons, one of them a lawj'er, Fred Searls, associated with him profession- ally, and the other a mechanical engineer. WALTER VAN DYKE. The long and honorable career of this pio- neer in the judicial and political history of the State is being crowned by a term on the Supreme Bench. Judge Van Dyke was born at Tyre, Seneca county. New York. October 3, 1823. He comes from a family of old Knickerbocker stock, closely related to the Dutch families, which have so long been fa- mous in the Empire State. Judge Van Dyke's father was a farmer, and died when the son was thirteen years of age. The latter at- tended the district school, and at the age of seventeen entered a select school at Earl- ville, Madison county. This was followed by a course at the Liberal Institute in Clinton, Oneida coitnty. His studies were frequently broken by iiiti'rvals of teaching school, to wliich he had to resort to enable him to seciu"e the means to pert'ect his education. In i84(). at the age of twemy-three, he went to Cleve- land, Ohio, where he pursued the study of law diligently for two years. L^pon his admission to the bar of the Sui)reme Court of that state, wliich occurred in .August. 184S, he entered itpon the pr.'iclice al Cleveland. In the spring of i84() he started for California, coming across the jjlains as one of ;ni organized com- pany of fourteen ymmg men. C)n the long journey he wru'e .'i record of tlie experiences oj' lus conip.iny. ,tnil espi-ei.illy of his own ob- serxations of n.itnr.il scener\-. ami sent let- ters to ;i Cle\eland new sp.ipi-r. which were ri-ad with wide iiiteiesl. In one of these letters, written while the company was in I'l.ih, he (lescrihid w li.it lie considered to be tln' most .iwiilable route for .1 trans-conti- nental r;ii1r.i;i(l. The line of the I'nion Pa- 496 History of the Bench and Bar of California. cific Railway, some twenty years later, closely followed the route which he suggested. From Salt Lake the company turned in a southerly direction, and arrived in Los Angeles. Cal.. in January, 1850. A few weeks later Mr. Van Dyke was in San Francisco. The first spring and summer were passed in the mining re- gions, after which he returned to San Fran- cisco. A company was being formed bound for the mouth of the Klamath River, with the object of laying out a town site and es- tablishing a base of supplies for the mines in the extreme northerly part of the State. He joined this company, and they passed through the Golden Gate in a little vessel, which was wrecked just as the party reached their goal, in attempting to enter the Klamath River. However, with the aid of friendly Indians they all reached shore. Separating himself from the town site scheme. Mr. Van Dyke settled at the town of Trinidad, a short dis- tance down the coast. Upon the organiza- tion of Klamath county, in the spring of 1851. he was elected district attorney. At the election of 1852 he was elected to the assem- bly, and was a member of the legislature which opened at Vallejo and removed to Benicia in 1853. About this period it was owing mainly to his efforts that Fort Hum- boldt was established and garrisoned by gov- ernment troops, to secure the settlement against the Indians. The first garrison con- sisted of three companies, U. S. Grant being one of the captains. Humboldt county being organized in 1853, the young attorney re- moved to that county. He was one of the commissioners to adjust the debt between Humboldt and Trinity counties. In 1854 he was elected district attorney of Humboldt county. For some years following, wliile pursuing his law practice, he edited the Hum- boldt Ti)iics, the leading paper in that section. In the fall of 1861 Mr. Van Dyke was elected to the senate of the State, and served at the sessions of 1862 and 1863. At the ses- sion of 1862. the Civil War having just broken out the year before. Senator Van Dyke of- fered resolutions in favor of the firm main- tenance of the Union. Three sets of partisan resolutions were already before that body ; but Senator Van Dyke offered his as a sub- stitute for the whole, which was adopted without alteration. April 4th. 1862. (See Stat- utes of 1862. page 608.) In the course of de- bate a senator inquired who had offered the substitute resolutions. Senator Van Dvke re- sponded, "The Union Part}'." The Union party was about to take control of the State, and continue in authority for some years, but it was not yet born, and this was the first time the words had been used. A few days after a Union party caucus was organized witli Senator Van Dyke as chairman. It was resolved to issue a call for a state convention, but the Republican State Central Committee issued its own call just then, for a state con- vention to meet in June, 1862. This latter was addressed not to Republicans specifically, but to "All who were in favor of sustaining the present national administration and maintain- ing the Constitution of the United States, and preserving the Union entire." Upon the ad- vice of Senator Van Dyke, the members of the new party caucus, and those in sympathy with them throughout the State, abandoned their proposed separate movement. When the Republican convention met at Sacramento. Senator Van Dyke was a member, and was unanimously elected permanent President ; and so the new party came into existence, and the title, "Father of the LTnion Party in Califor- nia," was awarded, with common consent of press and people, to the President of the con- vention. At the close of his senatorial term, Mr. Van Dyke removed to San Francisco. He prac- ticed law there with unbroken success from 1863 to 1884. In the 3^ear 1874 he became United States attorney for California by ap- pointment of President Grant, and held the office three years, when he resigned. There- after the government signalized its confidence in his ability by retaining him in some Span- ish "-rant cases in the United States Supreme Court, which had been commenced in the Cir- cuit Court while he was in office. In 1878 he was elected as a delegate-at- large to the constitutional convention, on a non-partisan ticket. He was an active mem- ber of that body, and chairman of the com- mittee on Article I, Declaration of Rights. This committee reported in favor of making a very imiiortant modification, regarding the grand jury system. Mr. \^an Dyke argued that the grand jury, having lost its original purpose as a safe-guard from prosecutions by government officers, the reason for its contin- uance no longer remained; and, further, that tlie grand jury in later years had very often been used in behalf of persons actuated by tn.ilice against others, by creeping into the grand jury room, and. on ex parte testimony, and in secret, procure them to be indicted. Walier Van Dyke History of the Bench mid Bar of California. 499 altliougb- iimoccnl of crime. Mc fax'orod in stead, prosecutions by information, tiled l)y tlu- district attorney, after a preliminary public examination before a magistrate. The result reached by the convention was a compromise. It was provided that prosecu- tiotis for crime should be either by indict- ment or by information, after examination and commitment. I'he remarkable effect has been that a great majority of cases are now prosecuted without indictment, but upon information filed by the district attorney after examination before a magistrate, the duties of the grand jury now being practically limited to the examination of books and accounts of public officers. Another noteworthy proposition of this gen- tleman was to embody in the article on edu- cation the substance of the act creating th.- State University, with the view of withdraw- ing that great institution from party politics and legislative interference, or (to ((note) that "its organization and government shall be perpetually continued in the form and char- acter prescribed in tlie organic act." .This proposition was incorporated into the new Constitution, but not until after long and se- vere debate. Its wisdom is generally ac- knowledged in the light of the later history of the university. This judicious and practical member also opposed the creation of the railroad commis- sion in its present form. He objected to en- dowing it with all the governmental powers — legislative, executive and judicial — and so making it independent, practically, of State control. He predicted that the connnission would be more often instrumental in carrying out the policy of the railways than that of the I)eoi)le. Our subject followed his profession indus- triously for some sixteen years after this i)e- riod. He removed to Los Angeles in 1885, where, as a member of a leading law firm, he was at the bar for about three years. He was then elected a judge of the Superior Court of that county for a full term "f six years. In 1894 he was re-elected for a full lirui by ;in increased majoritj'. In i8(jS, wliiK' on the Su- perior bench, he was nominated for the ol'tici' of Su])renie Judge — fii si by the .SiKcr l\ei)iib- licans, and endorsed by the DtMUocrals and the Populists. The regular Kei)ublicans cai' ried the State, i)Ut elected only one of tluir two candidates for Su|)reme judge. Judgi- \'an Dvke was chosen bv a vote exceeding that of any otlier candidate, receiving over 9,000 votes more than the defeated Repub- lican candidate, and over 4,000 votes more than the successful Republican candidate. He entered upon the duties of a justice of the Supreme Court at the opening of the Jan- uary term. 1899, at the age of seventy-Hve. The term of office is twelve years, and that he will serve to its close with unimpaired powers of mind and body is altogether prob- able. He is a man under the average stature, is very alert in his movements, and has al- ways been of the most temperate habits of life. He is a life member of the Society of California Pioneers, As a judge there are few men who have ever held a higher place in the affections of the people. His character may be seen in his own words: "As long as God gives me breath, the luillionaire and the man in rags shall alike receive justice from me eitlier in ])rivate or ])ul)lic life." A. P. CATLIN. A. P. Catlin was born at Tivoli, Dutchess county. New \'ork, in January, 1823. Thomas Catlin, first of the name known in America. came from the County of Kent. England, in 1643, and settled in Hartford, Connecticut. His posterity for five generations, including Pierce Catlin, father of A, P„ were born in Connecticut. David, A. P. Catlin's grand- father was a captain in the Connecticut mili- tia, and was in the action in which General Wooster was killed— the attack by the British (k'neral, Tryon, on the town of Danbury. He died at the age of ninety-three. His son. Pierce Catlin, was a school teacher, then a wagonmaker. afterwards a farmer. He died. aged eighty-four. A. P. Catlin's ancestors on ins mother's side were Germans, The first of Ibe line c.ime to America and settled in Diiichess county. New 'S'ork. .\pril. A. D. 1700. A. P. Catlin graduated ;it Kingston acad- emy, lister county. New York, in 1840. He studied l.iw in Kingston three :ind a half years, in the ollice of b'or.syth & I.inderman, botli of whom were distinguished lawyers of e.isiern .\e\\ ^drk, and was admitted to the b.ir of the Supreme (."oiirt of New York at Alli.iiiy. on ilu' ijih of January, 1844; and to I be old (onri of CJi;iiicery as a solicitor on 'lif i'''b of the same month. He pr.icliced ■ ilioni l.>iir years in I'Ister county, where he fre(|uenlly met as antagonists, in forcn- 500 History of the Bench and Bar of California. sic battle. John Currey, afterwards chief jus- tice of our Supreme Court; William Ful- lerton. the Judge Fullerton afterward dis- tinguished as counsel in the Beecher trial ; T. R. Westbrook, later one of the judges of the Supreme Court of New York ; and other young attorneys who afterwards made their mark in the Empire State. In the spring of 1848 he removed to the City of New York, and formed a partnership with George Catlin. On the 8th of January, 1849, he sailed for San Francisco, arriving in that port on the 8th of the following July. In the brief so- journ of a month he witnessed the organiza- tion of the first vigilance committee, the for- mation of the Revolutionary Court that tried the ■"Hounds," their trial, and concurrent scenes. That court was constituted of Dr. William M. Gwin, James T. Ward, and Thad- deus M. Leavenworth. The first two were elected by the acclamation of a crowd of citi- zens on Portsmouth Square, to sit with Leav- enworth, who was the alcalde and the only lawful authority. The alcalde at first re- fused to recognize his associates in any ca- pacity other than as mere amici curiae. Dr. Gwin declined to act unless he and his asso- ciate, Ward, were acknowledged as of equal authority with the alcalde. The latter func- tionary was compelled by the open threats of the excited citizens, who suspected him of partiality to the "Hounds," to yield the point. Some ten or twelve of the defendants were convicted and sentenced to imprisonment for various terms, the highest being fourteen years. Mr. Catlin reached the mines in the vi- cinity of Mormon Island, Sacramento county, in August, 1849. He passed the following winter there, engaged in mining and practicing law before Duncan, the alcalde of that district. Upon his arrival he found that office held by a son of Esek Cowen. who was formerly one of the justices of the Supreme Court of New York, and who wrote the useful treatise upon Justices' Courts. Upon the resignation of young Cowen. Duncan was appointed by Judge Thomas, judge of first instance, and his authority was recognized as absolute in all cases by a large population, and over an ex- tended territory without limit of jurisdiction as to value or character of property involved, until the legislature, in April, 1850, provided for justices of the peace. Returning to Sac- ramento in May, 1850, Mr. Catlin there met John Currey. They immediately formed a co- partnership, and opened a law office. Among the leaders of the Sacramento bar at this time were Murray Morrison, E. J. C. Kewen, Col- onel Zabriskie, Joseph W. Winans, J. Neely Johnson, John B. Weller, M. S. Latham, John H. McKune, and Philip L. Edwards. This partnership continued only for a short time. The climate prostrated Mr. Currey, who soon retired to San Francisco. Mr. Catlin witnessed the squatter riots and the conflict on the corner of Fourth and J streets, between the authorities of Sacramento City and the rioters, on the 14th of August, 1850. On that day Woodland, the city as- sessor, was killed, and Biglow, the mayor, was mortally wounded. Others were killed in the same fight, among them Maloney, the leader of the squatters. Dr. Charles Robin- son, who afterwards became Governor of Kansas, was severely wounded. On the fol- lowing day, in a continuation of the same fight, a few miles out of the city, McKinney, the sheriff of the countv, and several others were killled. The excitement was great, and the city authorities, fearing an assault from the friends of the rioters, who were supposed to be gathering in the country and mining sections for that purpose, made their situation known to the authorities at San Francisco. John W. Geary, then mayor of the last named city (afterwards Governor of Pennsylvania, and major general in the Union army), came to their assistance with two San Francisco military companies, one of them commanded by Captain W. D. M. Howard. It soon proved tliat the assistance was not needed, and that rumors operating upon an excited and terrified populace, had greatly exaggerated the sup- posed dangers. Late in the fall of 1850 Mr. Catlin closed his law office in Sacramento and returned to Mormon Island, being employed to settle the affairs of the Connecticut Mining and Trad- ing Company, which was the successor in interest of the famous store of Samuel Bran- nan, and to attend to the mining interests which he had acquired in that vicinity in the summer of 1849, and winter of '49-'50. Just then William L. Goggin, the agent of the Postoffice Department for this coast, visited Mormon Island for the purpose of estab- lishing a postoffice there. He requested Mr. Catlin to furnish a name for the office. Mr. Catlin had already formed the "Natoma" Mining Company, adopting that name from the Indian dialect, it signifying "clear wa- A. T, Catlin History of the Bcncli and Bar of California. 503 ter," and a tradition that such had been the name by which that locality had furnicrly been known anmng \\\v Indians. Goggin adopted ihc name, and that .^eciion of Sac- ramento county was officially named "Xatonia township." Mr. Catlin was always a Whig, as lung as there was a renmant of the old parly. He was placed on the Whig ticket as a nominee for the assembly in 1851, and was, with the whole ticket, defeated. In the following year he was nominated for Stale senator, and was elected. He introduced a homestead bill, the same as that which afterwards became law. but which was then, after a hot contest, de- feated by the casting vote of the lieutenant governor. His own constituents of Sacra- mento were faithfully served in much needed local legislation, and in the important mat- ter of the State Capitol. He was the author of the law making Sacramento the permanent seat of government of the State. At this session, and while the legislature was yet at Benicia, occurred one of the mo.-,i remarkable trials on record, though very little record of it remains. A prolonged and de- termined effort was made to elect David C. Broderick, Northern Democrat, United States senator. It was claimed by the Whigs, of whom there were seven in the senate, and by the supporters of Dr. Gwin, Southern Demo- crat, that as the term for which J^roderick was a candidate did not connnence until after the next session of the legislature, it would be an unconstitutional act to elect at that time, and so take tlu- election from the body to which it rightfully belongi'd. This argiuucnt had no weight with the supporters of Brod- erick, who had a large majority of friends in the assembly, but, as it turned out. only one- half of the senate. At that time the legisla- ture could be called immediately mU) joint convention by a concurrent resolution. llie struggle, therefore, was to put .such a resolu lion through the senate. Broderick's election would, at any time during the session, b.ive resulted in twenty-four hours after llu' .idop tion of such a resohuion b\- the sen.iie. I lie forces upon this (piestioii siood so e\enl\- di vided in tiie si'n;ili' that I'.rodeiiek ijicked but one \n\v. and this ii was jmpossibK' to obtain. The contest conliniu'd through the greater part of the session. ,ind the utmost vig- ilance was required on tin- part of those who opposed the election. I'lu-re were exceed- ingly few of the senators whose tirmncss on either side of the question could be doubled. 1 he ])osition of each one of ihem was made known by more than one test vote. The situa- tion was such that if any one of them had, in his own conscience, been ct)nvinced that it was his duly to change, it would have worked his political ruin to follow his conscience. Peck, one of those who had steadily voted against going into joint convention, was sen- ator from Butte county, a country merchant, of little experience in public affairs. .-\l one of the most critical periods of the senatorial contest, Senator Peck arose to a question of privilege. He charged that Joseph C. Palmer, who was the head of the most important banking institution in San Francisco, and an active friend of Broderick, had attempted to bribe him with an offer of $5,000 to vote in favor of going into joint convention to elect a United States senator. A resolution fol- lowed, summoning Palmer to answer for a breach of the privileges of the senate, and or- dering his arrest. A day was fixed to hear the matter, (ieneral Charles H. S. Williams, one of the ablest lawyers ever in this State, was retained as Palmer's counsel, and Colo- nel Ii. 1). I'aker was engaged by the friends of Peck. It was evident that a mighty struggle was to take pl.'ice when such giants took the field. Peck's statement was made on the Kjtli oi Jamiarw and the trial was concluded on the 3(1 of l'"ebruary. A large number of witnesses were examined. Palmer escaped through a single dexterous movement of his counsel. It had ln'i-n informally agreed by all the senators who were political deb.aters. that they would pel-mil the trial to proceed wiliiout mlerfer(.'nC'- on their part, except to \iite upon ([Uestions .IS iliey .arose, without debate, and that tiiev should act the pari of decorous and impartial jttdges. Colonel !?aker, an orator of profound ilioi'ghi and of more eloipieiit expression tiian an\ ot his d;iy and gi'iieial ion. was yel no ni.aleh for 1 leiieral Willi.inis in the m.an.ige- nieiii and conduct of ;i trial. When all was reail_\ and ihe senators li.id settled in liieir stats and diilx piii on ihe ;iir of judges. Palmer w.is e.illed lo ilie bar. .\s the ac- riis.il appid.iehed the secretary's l.able. Cien- er.il Williams reipie->le(l. in ;i (ptiel ,ind mailer of f.icl w;iy. tli.il be be sworn. I'lu- secret.iry administered the o.ath. no objection coming from any quarter. Palmer innnedi.itely i>ro- ceeded to relate his story, and proceeded but a few moments when it was clearlv niani- 504 History of the Bench and Bar of California. fested lo the sense of every one present that the act of allowing Palmer to be put on the stand as a sworn witness was a grave over- sight. But it was then too late to repair the error. Palmer swore that he met Senator Peck on tlie steamer at the time stated by Peck, and that the latter had in explicit terms proposed to him (Palmer) to vote for Brod- erick if he (Palmer) would give him $5,000. which proposition he (Palmer) courteously declined, and that was all there was of it. Thus the character of the investigation was at once changed. Palmer became the accuser of Peck, and was on the stand as a sworn wit- ness in support of his charge. This was be- fore the law permitted a party to be a witness in his own behalf in either a criminal or a civil case. Peck had made his statement upon honor as a senator, and in no sense as a witness, ex- cept in so far as his constittitional oath of of- fice bound him to speak the truth. He was not required to be sworn as a witness. He was a poor, obscure, uninfluential, and compara- tively friendless, country member. Palmer was a power in the State. Under these circum- stances this strange trial proceeded. There was, of course, no witness to the interview, and. therefore, every fact tending to support the statement of either party became important. At the close of the testimony some two days were spent by the senate in determining whether Colonel Baker should have the opening and close of the argument, or whether Gen- eral Williams should have that privilege, and some half-dozen votes by yeas and nays, are recorded in the journal, upon various propo- sitions regulating the order of the summing up, without coming to an agreement, until at last the chivalrous spirit of Colonel Baker prompted him to request that General Wil- liams should have the opening and close. There was one striking feature of this re- markable controversy. While it was fought with the utmost tenacity on both sides, there was an entire concurrence on the part of those opposing the election and supporting Peck — that Broderick had no lot or part in the al- leged attempt to bribe, and that he was as unconscious of any proceedings of tliat char- acter being taken in his behalf as if he liad been at the bottom of the sea. The speeches of Colonel Baker and Gen- eral Williams occupied two days. The former never, in all his brilliant career, made a more powerful address. And yet no remnant of it has been preserved. The extraordinary cir- cumstances of the case challenged his powers in all their versatility. Palmer and A. A. Selover reeled under his invective. The "Se- lover Route" from San Francisco to Benicia has not faded from the memory of those who heard Baker then. The senate went into se- cret session, and there voted without debate. It was in a serious dilemma. There did not appear to be much doubt of Peck's honesty — none whatever of his imprudence in blurting out such a charge against a man of Palmer's standing, with no witness to prove it. The journals show that the senate extricated itself as follows. Hall, Democrat, of El Dorado, moved the following resolution : Resolved, That the statement made by the Hon. Senator from Butte. Mr. Peck, alleg- ing against J. C. Palmer an attempt to commit bribery, has not been sustained by the evidence adduced in the investigation. Many attempts were made to modify the original resolution offered by Hall, but it passed by a vote of 21 to 7. Catlin was among those voting in the negative. Immediately upon the adoption of the resolution Crabbe (Whig), of San Joaquin, offered the follow- ing: Resolved, That this decision of the senate in this case is not intended in any degree to re- flect upon the honor and dignity of Mr. Peck. This received 17 votes, with but one (Mr. Mahoney. Democrat, of San Francisco) against it ; ten senators not voting. Whether Peck or Palmer won the fight has never been determined. The case offers some solemn les- sons to young statesmen, as well as to mem- bers of the third house. Never attempt to bribe anybody. If you are offered a bribe, decline it. and, instead of pocketing the money, pocket the insult as quietly as circumstances will permit, unless it should happen (which is quite improbable) tliat you are able to prove the offer by other evidence tlian your own statement. Mr. Catlin was a mem1)er of the assembly from Sacramento county at tlie session of 1857. it was at this session that Broderick and (Jwin were both elected Ihiitcd States sen- ators. Mr. Catlin voted for neither of them, but. with sixteen others, voted for Henry A. Crabbe and James W. Coffroth. In March, 1872. Mr. Catlin was appointed one of three members of the then State Board of Equalization, and served as such until History of the Bench and Bar of California. 505 April, 1876. The most effective powers con- ferred on the board by the legislature were, after a prolonged contest, declared unconsti- tutional by three of the five judges of the Supreme Court, which led to the abolition of the board. During this period he was in the active practice of his profession, but found time to perform prodigious labors in the board named. In 1875 Mr. Catlin was brought forward as a candidate for Governor before the Independ- ent State convention, but was defeated by the combined votes of the supporters of John Bidwell and Mr. Estee. -which, on the final ballot, were cast for General Bidwell. In 1878 he was nominated by the joint convention of the Republicans and Democrats of Sacramento county as delegate to the constitutional con- vention, but in consequence of the recent death of his wife, and other causes, he declined the nomination. In 1879 he was one of the nomi- nees of the Republican party for one of the seven justices of the reorganized Supreme Court, and was defeated with all but one on his ticket. In i8go Mr. Catlin was elected a judge of the Superior Court of Sacramento county, and served the full term of six years, ending with the opening of the year 1897. He then returned to the practice. We closed our notice of his career, in "Bench and Bar" (1889) with these words, which we are glad to repeat : "Mr. Catlin is a man of indefatigable in- dustry, of very sound judgment, and great power of investigation. He is one of the safest of counsellors, unswerving in his fidelity to his clients, and a good man every way. In speech and argument he is slow but earnest. He has had little to do with criminal busi- ness. Having a good memory, he can tell a thousand interesting reminiscences of early times in California. He is slow to anger, has no vices, possesses a generous nature, and, al- though little given to sport or humor and having a serious, stern, almost morose look, is gentle in spirit and as tender as a woman. A man of pure life, broad knowledge, and strong brain, he still holds a good clientage, and is the junior by some years of a score of men who are leaders at the bar of the State. He owns a very fine library, in which he takes more delight than in society, politics, or external nature. A California pioneer, fa- miliar with all the motley scenes of time's latest drama, he is just touching upon the borders of a serene old age, the venerated confidant of the public. 'Whole in himself, .i common good." " After tlie foregoing was written and shortly before this History was complete, .Mr. Catlin's life ended peacefully at Sacramento. November 5. igco. WILLIAM M. STEWART. William Morris Stewart, at the head of the Nevada State bar since i860, was distinguished in the profession in California fifty years ago. He was attorney-general of this State in 1854. He was born in Lyons, Wayne county. New York, on the ninth day of August, 1827. His father was a native of New England, and of Scotch descent. His mother, whose maiden name was Miranda Morris, was a descendant of a well-known New York family. William was the eldest son, and when he was a small boy his parents moved from Western New York to Trumbull county, Ohio, and settled on a farm. His boyhood was spent in assisting his father on his farm, until he arrived at the age of thirteen, w^hen he was allowed to start in the world for himself. He first worked for a neighbor for $8 a month for six months. He then went to school, in an adjoining township, called Farm- ington Academy, and managed to support him- self and attend that institution for three years. To accomplish this he worked for wages dur- ing school vacations, and during term times he sometimes boarded himself and cooked his own meals, and at other times he did chores for his board. A high school having ])een established in Lyons, New York, his native town, which was called Lyons L^nion School, he went there to pursue his stud- ies, where, as formerlj-, he worked on the neighboring farms for wages during the vaca- tions. But his proficiency in mathematics soon enabled him to obtain employment as a teacher of that science in the school of which he was a pupil. His wages during vacation, and com- pensation as teacher of mathematics enabled him to prepare for college. He entered Yale college, remaining there until the winter rooke are both natives of London, England. Mr. Holladay is referred to witli otlur iiolile pioneers of the bar, in our sketch of Henry I",. Highton. He made a visit to Euro])e with his family in 1882, and the family made lali-r ;ind more extended sojourns. He was one of the three executors of the will of the widow, Almira Gibson, probated in San Francisco in 1884, in wliich a legacy of $3000 was left to each executor. He was also an executor (with William Sherman, Ignited States Assistant Treasurer, and Hon. Samuel Cowles, former County Judge) of the estate of Judge John Satterlec, deceased, and received a legacy of $5000. Mr. Holladay practiced law in partnership witii J. C. Cary, afterwards Superior Judge, from 1852 to 1863. He was next associated with Hon. Nathan Porter, afterwards district attorney, from 1864 to 1873. The firm was for the latter part of the time. Porter, Holladay & Weeks (E. P.). Mr. Holladay continued from that time in the practice, alone, until his son joined him upon being admitted to the bar in 1883. In the Bonanza suits (Q. V.) Mr. Holladay, and John Trehane, attorneys for ])laintifF, received a fee of $40,000 each ; and tlieir associate, ex-Supreme Judge Nathaniel Bennett, received a fee of $25,000. Our friend, sunny-tempered in his old age, as ever, is still in practice with his son. The entire profession is his friend. Of positive convictions and .strong character, he is chari- table and kind to others regardless of condi- tion. He has a classic face, refined manners, a (juiet temperament, and is devoted especially to his home and family, and to philosophical studies. HENRY E. HIGHTON. If we agree with the members of the "So- ciety of California Pioneers," that only those persons are pioneers who arrived on this shore in the year 1849 or before, then, it will be readily accepted, our pioneer lawyers surviv- ing in 1900 are very few. Indeed, the full l)ody of pioneers yet living is comparatively small. As for the living pioneer lawyers who have won special distinction in their calling. and whom the profession toilay delights to honor, the entire array from Yuma to Yreka may be counted on the fingers of one's two hands. McAllister and Randolph and Mc- Dougall, and Field — who of their compeers arc lingering still? Did they have compeers? h'rom the ])yrnc w.is not. \or w.'is I loge. or Sam Wilson. or liorfman, or Sawyer, or Jo R;ildwin. or llie iwo Shafters. Not to make comparisons, the first-class men of the earliest day who have lived into a third generation, rise at once on the view. There is .Alexander Campbell, at Los Angeles — and W.ilier \;in Dvke, and Cornelius Cole, of that 508 History of the Bench and Bar of California. place. There is Thomas H. Laine, at San Jose. And Niles Searls, at Nevada. And A. P. Cathn and John H. AlcCune, at the Capi- tal. And in the great city are Annis Mer- rill, and John Currey, and E. W. McKinstry, and Samuel W. Holladay, and Henry E. Highton. Mr. Highton is youngest. When we al- luded to these worthy men as living in the third generation, we might have excepted him. He was born in 1836, July 31st, in Liverpool, England. On his father's side he came from old Leicestershire lineage, while his mother's famii}- have been settled in Yorkshire for many generations. His father, Edward Ray- ner Highton, was born in Leicestershire Sep- tember nth, 181 1, a fellow-countryman of our Baker, and born in tiic same year with that great lawyer, orator and soldier. In his na- tive country the elder Highton iield many mil- itary and civic positons, and there, as well as in this, his adopted land, his name and fame are inseparably bleni with movements for mu- nicipal betterment and for the reformation of criminals, especially juvenile delinquents. The Highton family name is interwoven with mod- ern Enensh history and English classics. Henry E. Highton's education was com- menced at the school of Rev. J. C. Prince in St. Anne Street, Liverpool. During his stay at that institution he took ever}^ 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 emi- gration 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 her- self acquiesced in the design. A brilliant ca- reer at the bar was to be his destiny, which he seems to have early foreseen, and the youtli 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. Highton may refer to his fa- ther with a kindred feeling. By light of sun, or lamp, or candle, or 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 par- ental 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." We 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 kin- dled in tlie breasts of some of England's learned men. Said the Rev. Mr. Prince to the father, when the latter 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 Lord Chancellor." It was at Milwaukee, Wisconsin, that the father and son first settled on this side of 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 ad- venturous youth, not thirteen years of age, started across the plains for California. Not to touch the incidents of his toilsome and eventful trip, he rested, on September 3d, 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 occupations, work- ing a great part of the time at actual mining in the placers, like many others who after- wards 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, studying it in a desultory way, l)ut 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 except Dr. C. C. Knowles, the dentist, who took great interest in him, and showed him much kind- ness. Shortly after the organization of the \ igilance Committee of that year, be became a friend and associate of the late Frank Sonic, 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 afterwards enlarged. HeJ gathered local items, reported law proceedings and public meetings, and condensed news from interior journals, and from Eastern, Austra- lian and Chinese newspapers, which arrived 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 Sacra- "iilA Henry E. Highton History of the Bench and Bar of California. 511 mcnto and legislative correspondent of tlie San Francisco Herald, and after th close of the session wrote for that paper a series of arti- cles on the manufacturing interests of San Francisco, and upon other topics. Mean- while, he pursued his law reading at night. Then he devoted himself entirely to his le- gal studies for one year, and, on July 3d. i860, he passed his examination and was admitted to practice by the Supreme Court, on the rc- jjorl of a committee composed of Cieneral Thomas H. Williams and John B. I'elton. He answered correctly every question, including the catch query or puns asiiiunnii : What is the difference between the undivided moiety of the whole and the whole of an uudi\-ided moiety?" B}' the advice of Oscar L. Shafter he com- menced the practice of law at Sonoma, then just incorporated. In the fall of i860 he re- turned to San Francisco and began law prac- tice there. In 1861 Mr. Shafter (who had not then been on the bench) visited the East, leaving to Mr. Highton several important causes to try in the District Court 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 at- tended by great physical and mental suffering, he subsequently rendered important services. For a few months, also, in i864-"5, he was in partnership with William P. Daingerfield and J. Douglas Hambleton. These were his only partnerships. Afterwards for a year or more he was employed especially 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 imi>ression on m;in\- that his specialty is that branch of the law. But he, like McAllister, has no s]K>cially. In- deed, he has no fondness, although great fit- ness 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 professional hie. Mr. Highton has never held, or a>^pired to a public office, or been a member of a ])oliiical convention; yet he has great i)ul)lic si)irii. which has been often signally displayed. In i860 the late John IV h'ellon and i.evi Parsons (the latter had been a district judge in San Franci.sco) attempted to secure the passage by the legislature of what was known as the ^'Bulkhead Bill." The proposed meas- ure 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. The boldness and magnitude of the scheme alarmed the metropolis. A "Citizens' Anti-Bulkhead Com- mittee" was formed, with Layfayette Maynard as chairman. .Mr. Highton joined this body, and was forced by circumstances and the par- tiality of friends into a prominent position, lie wrote the memorial to the legislature, the address to the senate, and various other doc- uments against the measure, contributing to the local ]iress many articles on the subject, which were published as "leaders." After the mission of the committee was accomplished l)y the defeat of the bill, he prepared the con- gratulatory address to the people of the State, of which many thousands of copies were dis- tributed. The committee, through Mr. May- nard. 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 veto of Governor Downey. Shortly afterward the Governor visited San Francisco, and the people turned out en masse to receive him. .\ torchlight procession es- corted him to the old American Theater (where Halleck P>lock now stands), and there Mr. Highton presented and read the resolu- tions drawn by lion. W. J. Shaw and accom- panied them with a vigorous speech. He was the author of the resolutions read and adopted at the great Union meeting at the corner of Montgomery and Market Streets in San I'^rancisco. in .\pril. 1861. Several other promiiu'iU men had submitted resolutions to the connniltee having the meeting in charge, and some of them were very lengthy. Mr. ilighton's draft was preferred. .\fter the .inti-bulkhead victory, Mr. High- ton w.is luged by Lafayette Maynard and iiliuis to iini for the State senate, but he told them he w.iuted no otlice. and the l)est service his friends emild remlti" him was to send him l;iw business. Mr. Highton was an early oi)ponent of Chin ese immigration. He took a firm stand on this ( I nest ion in 1857, and at various times since has given public I'xpnssion to his views, .\fter i'roideiu .Xrthur's veto of the Chinese bill, Sen.itor Ingalls, of Kansas, who had voted 512 History of the Bench and Bar of California. against the bill, addressed a letter to a gen- tleman of this city, in which he expressed his sentiments on ihe Chinese question, and de- clared 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 power 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. 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-American 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. Mr. Highton has tried, either alone or as leading counsel, many important cases in every branch of his profession, especially jury cases, but he prefers controversies involving intri- cate commercial questions. He once kept a set of books for three years in order to know how to comprehend accounts. There are lead- ing cases of his in the Supreme Court Reports, in which his name does not appear, because he was employed as counsel and was careless about getting his name into the published vol- umes. 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." Acknowledging that the working classes have long had good cause for complaint against cor- porations and canitalists, he yet firmly opposed the movement under Dennis Kearney. He suc- cessfully defended John Hayes for throwing Kearney from the platform at Piatt's Hall, at a meeting called to consider the relations be- tween the city and the Spring Valley Water Works. This was a long and exciting trial. It was admitted that Hayes did assault Kear- ney as a matter of fact, but Mr. Highton main- tained 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. On March i6, 1878, at 2 o'clock in the after- noon, a large public meteing was held in Platt's- Hall, San Francisco, to express opposition to the proposed purchase of the water works of the great Spring Valley Water Company. The meeting was called by several citizens, none of whom had any affiliation with Kearney or the so-called W^orkingmen's Party. The attend- ance was very large. The committee of ar- rangements had selected Monroe Ashbury for President. Mr. Ashbury was an old citizen, universally honored, and had held several important offices ; but he was not the right man to meet the unforeseen crisis which was at hand. The meeting was not called to order until a quarter of an hour after the appointed time. '1 Ue hall was full and the audience restive, es- pecially that portion composed of Kearney's, contingent, present in large force. The chair- man of the committee proposed Mr. Ashbury 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. There is hardly a doubt that if Mr. Ashbury had been nominated earlier, had promptly responded, and had exhibited a firm attitude, all would have been well. But, as he afterwards testi- fied, he considered the meeting had been packed, that its objects had been defeated, and he declined to serve as chairman. The Sand Lot instantly asserted sway. Kear- ney himself put the question as to whether he should preside. A loud response went up from his men, inassed in the center of the hall, and he declared himself elected. Several speeches then followed, one of them lieing made by Rev. H. Cox. (Mr. Cox, State Senator Edward Nunan, and Eugene N. Deu- prcy. then a rising young lawyer, had been se- lected by the committee as the speakers of the occasion.) Senator Nunan next presented himself and was introduced tc:) the assemblage by Rev. Mr. Cox. Kearney then declared that Nunan should not speak — that no politician in office should speak at a meeting 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 Hayes Valley and Hayes street were named, went upon the platform and said lo Kearney. "If you do preside over this meet- ing, you don't run it." Then, getting behind History of the Bench and Bar of California. 513 the "president," he pushed him off the phitform into the music stand. Hayes was arrested, and Kearney and Numan continued their dis- pute with voice and gesture for twenty-five minutes. Finally, Numan was prevailed upon to retire in the interest of peace. After a short speech from a legal light of the Sand Lot, Kearney declared the meeting adjourned, and it dispersed. Three weeks later, April 7, 1878, the trial of Hayes on a charge of battery upon Kearney, was commenced in the Police Court. The instances are far too numerous to be noted, where peaceable and reputable citizens have been called upon to administer chastise- ment in cases where the law failed to pre- scribe any punishment ; but in such instances, the result has nearly always been that the party who sought to right his wrong was him- self punished by the law. Hayes, of course, committed an assault upon Kearney. The de- fence it would seem would have plead that the provocation was great if not irresistable. All classes of society agreed that Hayes would be convicted of assault, and would be fined — the better classes hoping that the fine would be the lightest permissible. But Mr. Highton, who anneared for the defence, and also in reality in behalf of society and the public, took the bold and novel ciround tliat Kearney was the aggressor; that he had first committed a technical assault upon John Hayes and upon ever}- other citizen who had entered Piatt's Hall to further the object of the meeting; and that when Hayes pushed him from the plat- form he, Hayes, acted in self-defense and in defense of those who had called the meeting. Although this w-as only a case of battery in an inferior criminal court, it makes, by reason of the principle involved, and the able and ingenious manner in which the defense was in cllect tin-ned into a prosecution, a bright chapter in Mr. Highton's forensic ca- reer. The evidence was interesting, the argu- ments able and instructive, and the case mer- ited a full report, for wide dissemination in printed volumes. Mr. Highton probably never achieved a more notable triumpli. Immediately upun thr close of the argument, the magistrate. Hon. Davis Louderliack, rendered his decision, as follows : "I'nder tlie circumstances of the case, 1 think the conduct of Dennis Kearney in seiz- ing the organization and controlling the pro- ceedings of that meeting, was unjustifiable and illegal. I think the law views his act as an intrusion and a violation of the rights of those persons who originated the meeting, and I lie right of the people peaceably to assemble for a lawful purpose. This shove was evidently, not for the purpose of an assault, but in as- sertion of the rights of the meeting. He did not beat him or strike him ; but gave him a shove in the excitement of the moment to assert his right and his protest against Kear- ney's illegal acts. Under the circumstances, I think it does not constitute a battery, or an assault, and the case is dismissed." The result of this trial was received with great satisfaction by the large majority of cit- izens. It won for Mr. Highton (who would accept no fee) the earnest plaudits of the press and people, and added largcl}- to his fame as an advocate. The two principal criminal trials with which Mr. Highton has been connected, presented interesting coincidences. Both grew out of assaults upon the proprietors of the San Fran- cisco Chronicle, and both resulted in the ac- quittal of the accused. The first was the mur- der case of Isaac M. Kalloch, son of Mayor Kalloch. In this, Mr. Highton was leading counsel for the defense. The accused, whose father had been severely arraigned by the Clironiclc as being corrupt personally and of- ficially, followed Charles De Young, the senior ])roprietor, into his business office and shot him down. This was in i860. In the other case, assault to murder, the accused. A. B. Spreckels, also invaded the Chronicle business office and shot M. H. De Young, the sole pro- prietor, inflicting serious wounds. He, too, claimed to have taken arms in vindication of his father and family. This was in 1885, and in this case Mr. Highton was associated with Hall McAllister. The coincidences failed in the ])roperty qualifications of the two accused, Kalloch being a poor man and Spreckels a Crcesus. Both trials progressed at great length, amid deep public interest, and in each iluTc was a general verdict of not guilty. Mr. Highton argued all the questions in ilu- I )ui)oni street cases, before the Nine- teenth District Court, in connection with Judge (l.'irber and Thomas B. Bishop. These cases grew out ol" the widening of what is now Grant .\ venue. San l'"rancisco. He participated in the argument of tlu- actions to enjoin the col- lection of the Kearney street widening tax, and to recover the taxes already collected. He made arguments in both the District and Su- preme Courts. Mr. HiglUon delivered the oration in 18S3. August 24th. at the laying of the corner stone of the (iarfield Mouinuenl in Golden Gate 514 History of the Bench and Bar of California. Park., San Francisco. The ceremonies were conducted by the Knights Templar of the United States, tlien in triennial conclave. As the occasion was rare in other respects, so the audience was one of the grandest ever ad- dressed by man, nnml)ering. it is believed, si.xty thousand peo])le. In August. 1874. Mr. Highton married the second daugher of the late P. M. Scoffy. long a merchant in New Orleans and San Francisco, who died highly respected and much beloved, in 1895. His wife is an amateur artist of de- cided merit. She i>ainted a number of fine pictures, one of which, a large painting of Mount Shasta, was e\hi1)ite(l at the rooms of the Art Association. Mr. Highton has no children. He is a mem- ber of the Episcopal Church. He has no pa- tience with infidelity, or atln'isni. and has fre- quently spoke it-, favor of religions organiza- tions, outside of his own church. Among his more recent essays for public study was one of universal interest. "The Book of Job in Re- lation to Modern Agnosticism." It appeared in the San Francisco Bulletin of February 6. 1897, covering a page and a half of the paper. He always regarded his six years' labor in the mines as of incalculable benefit to him. and credits it with his physical development. It embraced the plastic period of youth, and 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 .\nierican civilization is the highest, and that the .Vmerican system of government is the most potent to produce the best results. His faith in the people is thorough and profound. ALEXANDER CAMPBELL. This imposing figure, towering so long in the southern i)art of the State, enjoyed for a considerable period the distinction of being the first criminal lawyer at the San Francisco bar. In the pulilic mind he was associated with criminal trials, and it is true that he had shown himself at his best in tliat role; but this was becau.se he had more business, and. therefore more onT)ortunity. in that department of law. Of course, a lawyer, even of the first class, cannot always, nor often, control the course or character of his professional work. The people have much to do with deciding whether a lawyer must confine himself to a special line of cases. As was observed of iMcAllister, they frequently persist in assign- ing a lawyer to a specialty when he has none. An advocate may, and often does, at the outset of his career, by a masterly effort, establish a local reputation for special aptitude and abil- ity in a p.irticular line, when he is really enti- tled to :i more catholic judgment, a broader fame. He will inevitably become involved with his cause, and the more close his devotion to any cause, the more apt is he to be assigned to the class to which such cause belongs. If he signalize his entry upon the active duties of his profession, by a powerful prosecution or a brilliant defense of a great criminal, he will be fortunate if afterwards he can build u]) and wield a general practice : — while if it be a great land case that shall disclose the riches of his intellect and the stores of his erudition, he will probably do a land busi- ness, if not a "land ofiice business," the re- mainder of his life. But those whose lots are cast in sparsely settled communities, where the division of labor is never strongly marked, are not so affected. It was not by his own preference that ex- Judge Campbell devoted most of his time in San Francisco to criminal practice. It was dis- tasteful to him to be assigned to any specialty. He loved the law in its integrity, and dis- claimed having special fitness for any particu- lar branch. It is not strange, however, that having been called, in very early manhood, to be the public prosecutor in the great center of American life, criminal practice should thereafter engage his principal attention. Alexander Campbell was born in Jamaica in February, 1820. His father was an English- man and a planter. Upon the abolition of slavery in the island, he removed with his f.imily to New York, and thence to Nova Sco- tia, lie sent Alexander to England, and gave him what is sometimes called here a grammar- school educ.-ition. The young man commenced the study of law in New York, when he was sixteen years old. In 1842 he opened prac- tice in Brooklyn. The oft-used expression, "architect of his own fortune," may be ap plied to him. if to anybody. He did not in- herit a doll.ir. \ot to dwell upon his youthful struggles, he is found honestly and earnestly acquiring a knowledge of law. At his ma- jority he is admitted to practice, and for some years follows his profession successfully, at- tracting the notice of his seniors by his correct judgment, and his lucid, impressive method of argument. Before he is thirty years old he has been city attorney of Brooklyn, and Alexander Campbell History of the Bench and Bar of California. 517 district attorney of Kings comity. In the latter office he has won a reputation for being an indefatigable, sometimes a fierce, prosecutor of public offenders, whether they operated singly or in bands, cliques or rings. Mr. Campbell first came to San Francisco m August, 1849. He had been practicing at the bar a little over a year when he became County Judge in a novel way, or rather, at the end of a novel legal controversy. William H. Clark, another pioneer, was regularly elected County Judge at an election appointed by law. On the very day of the election, while the voting was in progress, the legislature, then sitting, passed a law repealing the act under which the election was being held, and conferred upon the Governor the power to ap- point a County Judge. The Governor ap- proved this repealing act on the scuiic day, and a few days thereafter appointed Alexander Campbell County Judge. A conflict arose be- tween Messrs. Clark and Campbell, which was carried before the Fourth District Court by quo ivarranto, and thence on appeal to the Supreme Court, resulting in a triumph for Campbell ; it being held that the repealing act took efifect on the day of tlie election, and be- fore the voting terminated, and that the elec- tion was therefore void. The decision of the Supreme Court in this case was rendered by Judge S. C. Hastings, Judge Lyons concurring. There were only three members of the court at that day. Judge Bennett, the remaining member, expressed his dissent, declaring that the repealing act did not take place until the (lay after the election, and that, therefore, the result of the election could not be disturbed by the legislative enactment. It was agreed that the repealing act took efifect from and after its passage. Judges Hastings and Lyons held that it took efifect the very moment the Gov- ernor signed it. Judge Bennett held that an act taking efifect from and after its passage, does not become operative until the next day after its passage. (First Cal. Reports, 406.) By virtue of his position as County Judge, Judge Campbell was Presiding Justice of the Court of Sessions, which tribunal was com- posed of the County Judge and two justices of the peace as associate justices. While the Court of Sessions was sitting one day — present, -Alexander Campbell, presiding judge, and Ed- ward McGowan. associate — an event occurred which probably has no parallel in legal annals. It was the 9th day of September, 1851. The grand jury came into court, and through their foreman presented and read a written request l(j be discharged on the ground that the exec- utive. Governor McDoupal, had pardoned "a certain criminal, a notorious enemy of peace- able men." The court refused to discharge the jury. Judge Campbell remarked that if the jury were to be discharged upon the ground set forth in their report, the court could not refuse, if renuested. to discharge the next grand jury; and the next; and not only that, but every officer of the law might, with the same propriety, desert his post and abandon his duties, and so leave the country in anarchy. The grand jurors, having relieved themselves in some measure, returned to their duties. Judg-e Campbell resigned his seat on the bench about six months before the expiration of his term, and was succeeded by Judge T W. Freelon. He resumed law practice, which he pursued until the organization of the Vigi- lance Committee of 1856, when, as Dickens said of London, in describing the religious riots, "the city rose like a great ocean." On account of his opposition to that organization, he withdrew to the Sandwich Islands, for a year. He returned and resumed practice in 1857. From that lime until 1881. when he again removed irom the city, he was a conspic- uous figure at the metropolitan bar. Among the more noticeable of the cases in which he has been engaged may be mentioned the Black will case; the Harry Byrne will case in wliich Matilda Heron was the contestant; the impeachment of Judge Hardy, 1862 ; the breach of promise case of widow Clark vs. Michael Reese; the case of the People vs. Clark ; the two trials of the Brotherton broth- ers, for forgery ; and the two trials of Laura D. Fair for the murder of A. P. Crittenden ; the case of Kalloch. indicted for the murder of Charles De Young, of the San Francisco Chronicle ; and the case of Spreckels, indicted for assault to murder M. H. DeYoung, sur- viving proprietor of the same paper. The Fair murder case has been touched in the notice of Byrne. On both trials, Alexander Cami)bell assisted the district attorney in the prosecution. His speech to the jury on the first trial was reported verbatim, with. all the proceedings, .-md published in pamphlet. This spccili is wortiiy of study by the law student. It is in Campbell's best vein; is bold, argu- mentative, manly and powerful, shorter than any other of the four speeches in the case, but just long enough, and delivered, as is his cus- 10111. without notes. His fame as an advocate will rest chiefly upon this effort. It does not ooniain a single quotation from poetry or 511 History of the Bench and Bar of California. prose. It is entirely divested of foreign orna- ment, but in itself is polished, symmetrical, complete. It is distinguished for its impas- sioned invective against free love, its skillful analysis of the character of the defendant, and its dreadful anathemas upon her plea of in- sanity, which he declared to be "a defense shameless, disgraceful, and destitute of any element which could commend it to the heart or judgment of any honest man." This veteran of eighty winters is a man of lightning perceptions — courageous, forcible, im- pressive, apt at citation, plausible in his the- ories, clear and strong in thought and voice, and animated in delivery. He finds attentive hearers in his juries. He gives no thought to the arts and tricks of practised speakers. Seneca's precept seems to be ever before him — "Fit words are better than fine ones." Very rarely does he turn aside from the realm of reason to the domain of feeling, yet has he sometimes touched with rare skill, the chords of sympathy, and sounded the depths of the soul. More than once have we seen warmth, earnestness and power breathe about him, as he poured forth a copious flow of that clear language which has been well said "to spring spontaneously from definite and precise ideas." Before a jury his movements and gesticula- tion are unrestrained ; his voice pleasant, yet not musical, and his expression clear and con- densed. He is the most unaffected of men. No man has less vanity. He never courts the re- porters — never, by glance or movement, does he betraj-^ a consciousness that he is observed. In 1881, Judge Campbell removed to Arizona, where he soon put himself at the head of the bar, and disabused the popular mind of the idea that he was a legal specialist. After five years in that region, he came back over the California line, and settled at Los Angeles. Here he became associated with two other at- torneys of more than local reputation — the firm being known as Houghton, Silent & Campbell. After some ten years, Mr. Hough- ton retired, and the partnership of Silent & Campbell was continued for two years there- after. Something over a year ago Judge Campbell was severely injured in a street-car accident, and was confined to his bed for many months. While somewhat lame, Judge Camp- bell is still a hale and vigorous old man, and does not look the eighty-one years that have passed over his head. He was married in 1872 to Mrs. Ruth E. Quinn. widow of former Lieutenant Governor Quinn, and has by his marriage a son, now an employe of the San Francisco Chronicle. JOHN T. DOYLE. John T. Doyle was born in New York city November 26, 1819, a son of John and Fran- ces (Glinden) Doyle. His grandfather was an Irish rebel of 1798, and came to the United States in 1803. His son John followed in 1815, and was a well-known bookseller in New York for thirty-five years, down to 1852. The pres- ent sul)ject after a course at Columbia Col- lege grammar school. New York, entered Georgetown College. D. C, where he gradu- ated, valedictorian, in 1838. He studied law and practiced in New York city from 1842 to 1851. when, on a vacation visit to Nicaragua, he became acquainted with Commodore Cor- nelius Vandcrbilt, then deep in a scheme for cutting a ship canal across the isthmus. On returning to New York he accepted Mr. Van- derbilt's invitation to become general agent of the canal company in Nicaragua. In that ca- pacity he spent a year on the isthmus, and built the still used "Transit road" from the lake to the Pacific. The canal company failed to obtain the capital needed for its projected en- terprise, and Mr. Doyle resigned his position and removed to California, where he resumed the practice of his profession in San Francisco, in 1853. and remained until 1888 at that bar. He has never sought public office, nor held it, except as a regent of the university when it was founded in 1868, and when by appoint- ment of Governor Irwin he served as a mem- ber of the Board of "Commissioners of Trans- portation," his associates being General George Stoneman and Isaac P. Smith. This position led him to a close study of transportation prob- lems, and especially of abuses in railroad trans- portation. For these he became convinced that the true remedy is to be found, not in the arbitrary regulation of freights by the State, but in the enactment of just rules, by which such charges shall be determined. He holds that railroads are public highways and should be open to all, on equal terms ; discrimination between individuals should be made criminal and severely punished as such. As to freight charges, he would begin by abolishing the car- rier's common law liability, as an insurer, as uncalled for by modern conditions of .trans- portation, and serving merely to excuse arbi- trary charges, having no relation to the cost of the service. Leaving the carrier, then, to elect as to each commodity, whether the ton History of the Bench and Bar of California. 519 or other units should be determined by bulk or by weight, he would classify all merchandise in accordance with its physical characteristics (as facility of handling, loading, stowing, liability to breakage, leakage, etc.), and require the charge for transport to be divided into two parts, viz : A terminal and a movement charge. The former — intended to compensate for re- ceiving, loading, stowing, waj'billing unload- ing and delivering the property (station serv- ice, in a word), to be (jependent on the class and quantity of the goods ; the latter by the distance traversed, equating grades and curves to distance. The rule briefly expressed would then be : "Units of weight ; units of measure- ment ; a terminal charge and a rate per mile." Live stock and articles of extraordinary char- acter, as explosives, etc., to be separately pro- vided for, and a proper difference allowed be- tween carload lots and smaller quantities. No deviation from general rule based on the idea of encouraging or discouraging any particu- lar trade or traffic to be permitted without ex- press government sanction. Further details are omitted as inappropriate here, where it is only designed to express the general idea. These ideas having been adopted, in sub- stance, by the commission, a report, leading up to the proposed reform, was prepared by Mr. Doyle, at the request of his associates ; and to avoid hasty innovation and proceed tenta- tively, it was proposed to require, at least, only a division of transportation rates into a terminal and a movement charge. Mr. Doyle was convinced that this small reform alone would put an end to discrimination between localities, and materially relieve the farming interests from the excessive transportation rates, on produce, then prevailing. Mr. Doyle said to us, in his emphatic way, when speaking of this subject: "The railroads scented the danger afar, and rallied their lobby to the defense of their pre- rogative of plunder." The bill proposed was amended in the house, and a substitute adopted which legislated the offending commissioners out of office, and replaced them by a single commissioner, charged with somewhat similar duties. To this office the Governor appointed an assem- blyman, and he, after a year's service, was fol- lowed bv the Board of Railroad Commissioners, created by the constitution of 1879, with the State so districted, Mr. Doyle asserts, as to give to the companies the assured control of two of the three, since which time there has been no serious attempt at legislative reform of abuses in railroad transportation. Mr. Doyle has preserved his familiarity with the Latin classics, and acquired after leaving school the French and Spanish languages, with a reading knowledge of Italian. These, with habits of accurate observation, have served him well professionally and otherwise. Noting while in Nicaragua the modes of legal proce- dure there, he was able to reconcile the course of proceedings, in the trial scene in the "Mer- chant of Venice" with Shakespeare's usual ac- curacy on legal subjects, to which it had been regarded as an exception. This was done in a letter to Mr. Lawrence Barrett, published in a local magazine, and afterwards reproduced in Shakesperiana. The explanation has been generally recognized by the legal profession and by Shakesperian students as satisfactory. and has been incorporated in Dr. H. H. Fur- ncss' great Variorum edition of Shakespeare. Dr. Furness says of the paper: "I have long thought it an extremely valuable contribution to Shakespearean literature, and one which never can, or rather, should hereafter be over- looked in any critical edition of the 'Merchant of \'enice.' " We took occasion to draw a picture of Mr. Doyle in our former work on the "Bench and Bar of California," to which we will add noth- ing here, save that he is at his best in the statement of the details of a complicated state of facts, making their order, connection and sequence easily intelligible. When associated with other counsel he always prefered to open the case and leave the summing up to others. He believes that cases are more frequently wt)u by the opening than by the closing argu- ment. Though impatient and irascible, he is good- natured at heart, and has materially aided many young members of the profession, who have been indebted to him for encouragement, op- l)ortunity and guidance. In literature he has a keen appreciation of the best and his library is a repository of varied lore. He takes de- light in Shakespeare and has many famous editions of the master's works, as well as of ilor.ice ;ind Don Quixote. Of the last he pos- sesses a copy which may be called unique, be- ing the Spanish Academy's cditio princcps, with a mass of illustrations, by various de- signers, read into the text, and enlarged, where necessary, by extra margins, to its size, so as to make up eight large volumes, beautiful spec- imens of tlie work of tiie printer, illustrator and liinder. 520 History of the Bench and Bar of California. Mr. Doyle was married in 1863 to Miss Pons, the daughter of a silk manufacturer of Lyons (France) of which city she is a native. She has borne him five sons and three daughters, the youngest of whom, Mrs. Francis Pope, is recently deceased. His only brother, Emmet, has also lately gone over to the majority, but his sister, Mrs. Eugene Casserly, still survives. At the age of nearly eighty-one years, he passes his declining days at his country home at Menlo Park, among his books and vines and fruit trees, interested in local improvements, current events and current literature, which he is able to enjoy more amply, by the pos- session of eyes which, notwithstanding sad abuse through seventy years, still scorn the aid of spectacles, even for the finest type. Two of his sons are serving their country, in an humble way. one in the navy, the other with the army in Manila; two others run the vine- yard and the wine company, and the youngest, Mr. W. T. Sherman Doyle, has lately been admitted to the bar, where we wish' him as successful and honorable career as that of his father. It is interesting at this time to note that a long interview with Mr. Doyle on the sub- ject of the Nicaragua Canal may be found in the San Francisco Bulletin of July 2, 1891. E. D. SAWYER. This early-day lawyer, legislator and dis- trict judge who is still at the bar, studied law in the office of Miles Taylor, a prominent law- yer of New Orleans in 1847-1850. After be- ing admitted to practice he sailed for San Francisco January i, 1851, via Cape Horn. A sea voyage of six months recruited his health. He remained only a few weeks in San Fran- cisco, and then located about September i, 1851, at Mokelumne Hill, where he made the acquaintance of the Hon. Charles Leake, the only lawyer then at the "Hill." We have heard Judge Sawyer, whom we have known since he was district judge at San Francisco — a generation has passed by since then — nar- rate some of his reminiscences of pioneer law practice in Calaveras. Mining disputes were frequent, and all of them were tried before a justice of the peace, and usually determined by a jury without regard to value. The Dis- trict Courts, several counties comprising a dis- trict, held three general terms a year at the county seats of each county of the district, but at first there was very little business, and that mostlv criminal. The most of the other business was local and transacted in the County Court, Court of Sessions and Justices Courts. In these latter courts, with untutored justices, many amusing incidents took place. One day a trial was go- ing on before a justice of the peace, and when the plaintiff rested, the defendant moved for a non-suit. The justice said the defendant was entitled to something, and he would grant the motion. The jury were discharged against the protest of the plaintiff, after which the justice was convinced that he had erred, and stepping to the door he called back the jury- men and informed them that the court had misspoke itself, and the trial proceeded. In another instance the attorney for the de- fendant moved the court to dismiss an action because the summons was not issued as pro- vided by statute. The justice, becoming in- dignant about the criticism, ordered the young legal light to sit down, and denying the mo- tion, remarked that he frequently overruled the statute. While similar occurrences were frequent the justices were honest men and did fairly well for a new country. At another time a justice of the peace em- paneled a jury, and commenced the trial of a prisoner for homicide because he claimed there was nothing in the statutes forbidding it. That was better than being tried by a mob jury for murder under hangman's tree, which occasionally happened. In the fall of 1862, at San Andreas, Mr. Saw- yer was hastily sent for to defend a man who had shot a gambler to death over a quarrel about the stakes of a card game. When he arrived at San Andreas he found a few hun- dred men in great excitement, selecting a mob jury to give the alleged criminal a fair trial. He was soon introduced to his client. He very anxiously inquired what he should do. The client replied that he had friends enough to resist the populace. Mr. Sawyer asked him what he had been doing. He replied : "De- fending myself." The lawyer then said: "There is no fear, come out with me and face the jury." The man followed his counsel right out, and the foreman of the jury intro- duced Mr. Sawyer to the populace and the jury. The advocate mounted a box, told them he was there to defend the accused, and all he asked was a fair trial ; and he believed the jury selected would give it. He declared that when a man was sprung upon by an armed man like a wild beast, he must defend him- self, even at the cost of human life. That was the case of his client, the man they were trying, &■ -^K-- : E. D. Saivyer History of the Bench and Bar of California. 523 and if he could not prove it, he was wiUing to suffer the penahy of death, and they could be the executioners. Then two of the cm- paneled left the jury, as they found they could not give the defendant a fair trial. Their places were supplied, the jury promised to be just and honest and act without haste or pre- judice in their deliberations, and they were conducted by the foreman to a large white tree, under whose unbrageous limbs temporary seats had been prepared for them, and where the defendant was to be executed if found guilty. A ring was formed by the assemblage around the jury, prisoner and attorney, and a man was selected as a prosecutor. The latter was an eminent jurist, and who for some years after adorned the bench of the State. The killing was admitted, and only one witness who had seen the deceased shot was called, and the de- fendant entered upon his defense of justifica- tion. After the evidence the case was elo- quently and forcibly argued on both sides and submitted to the jury just as the sun gilded the west at the close of a beautiful autumn day. They soon returned and discharged the prisoner. He was overjoyed at his release, for he knew he would have been then and there hanged if found guilty. In these days mining towns were filled with gamblers, who, wherever they could, ran the town. Whenever one of their number was interfered with, the gamblers immediately flocked to his aid. In the fall of 1852 a gam- bler, in a quarrel over a game, shot and killed a miner. The town was immediately under great excitement. The gambler fled. The dep- uty sheriff called upon the people for assist- ance. A half-dozen citizens volunteered to as- sist him in hunting the fugitive. Mr. Sawyer was of that number. He went out of town with another young man to scour the gulch. Others struck out for different places, as di- rected by the deputy sheriff. The assistant, with Mr. Sawyer, did it alone. When half way up the gulch the fugitive was discovered, ar- rested, brought into town and delivered to tlic sheriff. The gamblers' rule of Mokcluniiu- iiiii ceased on that day, and never was resumed. Mr. Sawyer successfully followed his profes- sion in Calaveras county until 1.854. f" ^'^S?> he was a member of the board of supervisors of that county, where he had .sonic iniijortant questions in determining public matters — one of which was the allowance of claims. He did not vote for any county expenditure unless the county had received the benefit. The claims of Slate census enumerators for services had to come before the board of supervisors for allowance before they could be paid by the State. Mr. Sawyer, being President of the board, objected to allowing them anything, and lie and one other formed a majority of those present. The claim was disallowed because they had performed no beneficial services. These political vagabonds v/ent to the legisla- ture then in session, had the law repealed al- lowing supervisors in Calaveras county to pass on their claims, received their compensation from ilic State, and never returned to the county. This created some excitement and caused Mr. Sawyer to be nominated at the Whig convention of 1853 for State senator. He was elected to the senate in November, 1853, from the banner Democratic district of the State. Soon after the legislature assembled at Benicia, the contest commenced as to who should be elected United States senator. The legislature was largely Democratic. The great question, negro slavery, was then agitating the North and South. The Democratic party in this State immediately divided upon this con- troversy. Hon. David C. Broderick was the anti-slavery exponent, and Hon. William M. Ciwin the pro-slavery leader; and each with liis followers and partisans waged a bitter con- test. This continued the whole session, and all other questions were overshadowed by it. No elections took place and but little useful leg- islation. Senator Sawyer determined to retire from politics. In June, 1854, he left for the I'^ast. He went to Washington City, saw the great men of the nation in congress assem- ])led. and then proceeded to Augusta, Maine, where he met his intended wife, a Miss Trow- bridge, of Louisiana, to whom he was married at the residence of Hon. Daniel Pike, July ,\\, 1854. From Augusta he traveled leisurely to the Pacific coast by way of New Orleans, visiting his relatives and those of his wife. These halcyon days, when all was sunshine and happiness, soon passed; then came, at San Francisco again, the realities of profes- sional life and the struggle for a living. He came without friends or capital, but with education and character. He labored and es- tal;iislK'd a iiome, practiced as an attorney, tirniiy taking a good position in society. In 1863 iij was a member of the board of edu- cation, and served one term. Will- he was in the board of education an offer of $70,000 was made for the large school lot owned by the city, at the corner of Fifth 524 History of the Bench and Bar of California. and Market Streets, having a frontage of 275 feet on Market Street, and the same front- age on Fifth Street. The majority of the board were at first in favor of the sale, but by the persistent effort of the minority a change of view was brought about. The proposition to sell the lot for a sum that would be a mere bagatelle in the near future, was defeated by a majority of one vote, and the school de- partment still owns the property, which is worth at least a million and a half dollars, and constantly growing more valuable. Judge Saw- yer not only never received the value of a nickle for his services as a school director, but, with John Bensley and Hon. Nathan Porter, donated upon his retirement from ofhce a lot in block No. 127, on Potrero — 140x200 feet — for school purposes. The lot is still school property and schools will be there before very long. Our friend was nominated and elected to the judgeship of the fourth district court in 1863, chiefly through the intluencc of Hon. Eugene Casserly, who for many years was a warm personal friend. Judge Sawyer discharged the duties of his office conscientiously, according to the best of his ability and to the satisfac- tion of the public. His judicial term was six years, ending with the close of the year 1869. The San Francisco bar at that period was as able as any in the United States, and the magnitude of legal controversies frequently involved vast properties, real and personal. A summary nf the important cases tried and de- termined by Judge Sawyer during his judicial term would occupy too much space. He had the same experience, toil and trouble as other judges who have served their fellowmen in courts of general jurisdiction. The labor is arduous and the compensation small compared with the responsibility. He left a lucrative practice to go on the bench, and, after ex- perience in both capacities, he preferred to be at the bar — hence he declined a renomination. and at the end of his term resumed the prac- tice of law. Judge Sawyer delivered the ad- dress at the Mechanics' Insliluto Fair in San Francisco. August 10, 1865. and was orator of the day on July 4. 1871. In 1886 he was the Republican candidate f(jr attorney-general. He is a member of the First Congregational church, and has very often responded to calls to address the Y. M. C. A., and other relig- ious bodies. He is still robust in health, and busy and alert in his ])rofession. surrounded with comforts of life and a happy family. JAMES T. BOYD. This veteran is closing the fiftieth year of unbroken prosperity at the San Francisco bar. He is a native of New York city, and was born November 10, 1825, in a fashionable boarding-house on Liberty street, next door to the Old Dutch church, on the corner of Nas- sau street. His father was Theodore C. Boyd, a merchant. Before the Revolution this house was a great sugar house. During the war the British used it as a military prison. Mr. Boyd's ancestry was Scotch (Kilmarnock), English (Graham and Cummings), and Irish (Nu- gent). His paternal grandparents were natives of New York, his maternal grandfather, of New England. He graduated in 1840 from the academy in West Bloomfield, New Jersey, presided over by William K. McDonald, Esq., afterward a distinguished lawyer of Newark. It was at President McDonald's suggestion that Mr. Boyd read law. At the invitation of his maternal aunt, Mrs. N. T. Rochester, he went to Rochester City, N. Y., and entered the law office of Smith & Rochester. While there E. Darwin Smith, at the urgent solicitation of Chancellor Walworth, accepted the office of clerk of the Eighth Chancery Circuit, and Mr. Boyd became a deputy in his office. In this position he attracted the favorable con- sideration of Vice-Chancellor Whittlesy ; won liiat of all the leading lawyers of the circuit, and acquired a valuable knowledge of chan- cery practice. He was admitted to the bar of the Supreme Court of the state of New York at ihe October term, 1846, held at Rochester; and about the same time to that of the Court of Chancery by the Vice-Chancellor. He prac- ticed law in New York for a few years, and came to California in 1851, arriving on the steamship Oregon in September. Here he was admitted to the bar, and joined the law firm of Janes & Noyes in San Francisco. His ex- perience in the East, and a natural aptitude for such investigation, induced him soon after his arrival to turn his attention to the study of titles to real property, and he soon ac- quired, as John R. Jarboe did later, a wide reputation for skill and ability in that branch of the profession. In 1854 the law firm of Janes, Doyle, Barber & Boyd was formed ; followed by that of Janes, Lake & Boyd ; subsequently, in i860, by Boyd & Morrison (late chief justice) ; Crane & Boyd; McCullough (formerh^ attorney-gen- eral) & Boyd; Cope (formerly Supreme Court justice) & Boyd, in 1876; and Cope, Boyd & Fifield. When Judge Cope retired a few years James T. Boyd History of the Bench and Bar of California. 527 since the present firm of Boyd & Fificld suc- ceeded to the business. Mr. Boyd has never sought or held office in California, except that he was a notary public for a few months, accepting the appointment at the request of a client, the late Michael Reese ; and in 1880 he was a member of the board of freeholders to prepare a charter for San Francisco. Mr. Boyd is a bachelor. He still continues the active practice of his profession, and, not- withstanding his advanced years, enjoys pro- fessional work. His eye is bright, and kindles yet at the sight of an abstract of title. He has been personally very successful in real estate litigation and in matters of probate, and has accumulated a considerable fortune. Alexander Boyd, a younger brother of James T. Boyd, was also one of the earliest prac- titioners at the San Francisco bar. He was born in New York city in 1832, arrived in San Francisco early in 1851, read law with Janes, Doyle, Barber & Boyd, was admitted to the bar, and died after a few years active practice, leav- ing some estate. He was plaintiff in the oft- cited case of Boyd vs. Blankman, reported in 29th California, at page 19, and in which it was held that an heir retains an assignable interest in land bought by an administrator at his own sale — that an administrator buying at his own sale is trustee for the heir. This decision is elaborate, and written by Justice A. L. Rhodes, now a judge of the Su- perior Court at San Jose. It was rendered in October, 1865, but the case ran back to 1851, and Mr. Boyd died before the final determina- tion. A. J. GUNNISON. Andrew Joseph Gunnison has been a busy man at the San Francisco bar since the year 1853. It was in 1851 that he came to our chief city from Massachusetts, where he had been reared. His native state is New Hampshire, and he can trace his American ancestry back to 1622. He was admitted to the bar of the Supreme Court of Massachusetts in 1847, and practiced law at Lowell until he left for Cali- fornia. Soon after his arrival at San Fran- cisco he went to Mariposa county, and worked in the placer mines with the crude implements of the time — the pan, shovel and rocker. After a year and a half had been spent he took up his permanent residence at San Francisco, and resumed law practice. His wife came from the East and joined him in the same year 1853. In his early practice here Mr. Gunnison was associated with two gentlemen who became prominent in the profession and in public life, namely, Samuel H. Parker and Samuel Cowles. Mr. Parker was afterwards a state senator, and was postmaster during President Lincoln's administration. He was a distinguished Odd Fellow ; an Odd Fellows' lodge at San Fran- cisco is named after him, and his monument stands in Odd Fellow's cemetery. Samuel Cowles became Police judge, and later County judge. Mr. Gunnison was the senior member of this firm until it was dissolved in i860. He then formed a partnership with Samuel G. Beatty, which lasted until the close of 1872. His next association, that with Mr. A. G. Booth, was begun in 1873. and still continues. Mr. Walter J. Bartnctt became a member of the firm in 1895, and the name has since been "Gun- nison, Booth & Bartnett." The firm has always carried on a general business in large volume. Street railroad companies have been among their principal clients, and of late years they have conducted the settlement of many large estates of deceased persons, among these be- ing the estate of William P. Fuller of Whittier, Fuller & Company. Mr. Gunnison was, of course, residing in San Francisco in the period of the great Vigi- lance Committee. He was, like Judge M. C. Blake and a large number of lawyers, proba- bly a majority of the bar. in hearty accord with that organization. During the Civil War he contributed generously to the sanitary fund, wliich fund was swelled so enormously by the donations of Californians. In Julv. 1862. Mr. Gunnison took passage on the steamship Golden Gate for a trip to the eastern states, by way of the isthnuis. The ship was burned and 200 lives were lost on the Mexican coast. The ship was run shore- ward and groimded. This was the great ca- lamity spoken of in "The Story of an Old Bank Deposit," which appears in this History. Mr. Gunnison jumped overboard and swam ashore. Rcturni..qf to San Francisco to start again on tiie trip, he found that the Union Republican party had nominated him for the assembly. He was successful with his ticket at the ensuing election, and served at the ses- sion beginning January 5. and ending April 26, iS()3. Mr. Guimison is of calm, judicial tempera- ment, and strong in mind and body in the evening of a prosperous, well-spent life. He 528 History of the Bench and Bar of California. registered as a voter on May 24, 1866, as being (lien of tiie age of forty-three years. LAWRENCE ARCHER. Lawrence Archer, the Nestor of the San Jose bar, as we had occasion to call him as long ago as 1882, kept occupied with the duties and honors of the profession until 1900, when he retired. He was born and reared in South Carolina. He is now 80 years of age. His father, to whose memory he is very affection- ately attached, was a merchant and farmer, belonging to the line of Virginia Archers, as distinguished from the Maryland branch of the family. The stock is English. Lie lost his wife when his son, our subject, was 15 years old, and about the same time, after a successful business career, was overwhelmed by reverses of fortune, and was unable to carry out his cherished intention to give his son a complete education. All is well that ends well, however — as we shall see. Professor Leverett, a school teacher at An- derson, S. C, advised young Archer to pursue the classics. He laoned the young man books, intstructed him therein, and employed him as assistant teacher to onal)lt' him to pay his way. It was a hard struggle, but one that was marked by exceptional assiduity, for, in eigh- teen months the student-teacher, or teacher- student, had mastered books that usually re- quire a four years' course. What with the kindness of Professor Leverett, the receipts of little sums from the sheriff for serving papers, etc., and the fact that he made his home with a married sister, our young friend got through in good shape. A benefactor offered him the means to go to college. The offer was gratefully accepted, and the institute agreed upon was the Uni- versity of Virginia. The fates so decreed that he should remain there but si.x months; the ups and downs of life are not confined to California, as some imagine. Young Arch- er's friend was ruined financially, and sud- denly, and the student returned home to study in another line — and he now entered upon his life work, and a long and prosperous life work it has been. He commenced the study of law when he was twenty years old, in .^bbieville. South Carolina. A year later he w enl to Mississippi, which seemed to him then to be the verge of creation. It was in the year 1841, and in a season of great commercial depression. Judge Baldwin's "flush times" were even tlicn a thing of the past. However, although he did not linger long, it was there that Judge Archer got his first start. He was admitted to the bar in Mississippi, and practiced in Yazoo county for about two years. The opening of Judge Archer's professional career was most brilliant and auspicious. He was in a frontier community, but his habits were correct. His first case involved the per- sonal liberty of a colored man. Under the Mississippi laws at that date, a free negro who was found within the state, without license or guarantee, could be apprehended and sold, the term of his involuntary servitude under the sale not to exceed two years. A certain negro was thus sold, and a lawyer named Crenshaw sued out a writ of habeas corpus on his behalf. Crenshaw asked young lawyer Archer to argue the case, and the latter did so. The court held that the negro had been rightly and lawfully sold, and was rightfully and law- fully m bondage. Crenshaw then abandoned the case. Under the same state law a negro who had been sold unlawfully or irregularly, could maintain suit for damages against his purchaser. Mr. Archer instituted such a suit in the bondman's name and the case was tried before a jury of slaveholders. They brought in a verdict for the plaintiff and he was free again. This brought the young attorney some im- portant business, and he had become estab- lished when he determined to go farther west. He located next at St. Joseph, Mo. He was well received there, and acquired business rapidly. The Governor appointed him district attorney to fill a vacancy. He accepted and was at the ensuing election chosen to that office for a full term. One of his predeces- sors in the same office was Hon. Peter H. Burnett, who afterwards was the first Gover- nor of California. The judge of the District Court having made himself obnoxious to the bar by his partiality, despotism, etc., and be- ing nominated for re-election, Mr. Archer was put in the field against him, as the candidate of the bar. The sitting judge withdrew from the contest, whereupon Mr. Archer withdrew also, saying tliat tlie object of the bar had been accomplished. A new man was elected. This was in 1850, when Mr. Archer was 29 years old. Our subject came to California in 1852. settling first at Sacramento. He was getting into a good business when the great fire of November, '52, drove him away. After a stay of two months in San Francisco he went to San Jose, and in that city he has resided and followed the profession steadfastly since Jan- History of the Bench and Bar of California. 529 uary, 1853. Al first lie figured in criminal suits. Gradually he worked his way into great land cases. Chief among these latter were Touchard vs. Singleton, involving the Chabolla grant of 10,000 acres in Santa Clara county; and Miller vs. Dale, a contest between two ex- tensive land grants near Gilroy, in the same county. It was about 1859 that JMr. .Yrcher found himself with a murder case on his hands just before the close of a term of the District Court. He had been remarkably suc- cessful with his cases throughout the term. Messrs. Wallace and Ryland were associated with him, and they suggested that the murder case be allowed to go over to the ne.xt term. "I feel," said Mr. Archer to his associates, "that my luck has not been exhausted. We will try the case." They tried it and won it. One Reddick charged a man named Paige with stealing the former's cows. Paige sued Reddick for heavy damages for slander. On the trial. Mr. Archer, representing Reddick. in his statement to the jury said. ''Gentlemen, if you think, from the evidence, when you shall have heard all of it. that the plaintiff is not guilty of grand larceny, I hope you will bring in a verdict against my client for the full amount of damages prayed for." Judge Wm. T. Wallace, who was present, declared that this was the boldest act on the nart of an advocate that he had ever witnessed. A verdict was rendered for the defendant. Mr. Archer was elected County Judge of Santa Clara county in 1868. Tie had been used to the title of "Judge," from boyhood. He would, as a youth, sit quietly and listen attentively to whatever was under discussion, in the family circle, or the school, or the stor^-, and when all others had got through, he would say a few weighty words concluding the wliol.- matter. This habit of summing u]) won for him the title of "Judge," in his palmetto town, when he was yet a little boj-. The Judge resigned his seat on the bencii in 1 87 1. In that year he ran for congress on the Democratic ticket against Gen. S. O. llougbton. and was defi'ated. lie was a mem- l)er of the assembly at the session of 1875-7^), and was chairman of the committee tm corj)o- rations. In 1878 he was elected mayor of San Jose and served out his term. That was. we believe, his last official service. 'I he following which we wrote of the Judge in 1882. we understand still holds true: "In 1854 Judge Archer built the best resi deuce in San Jose. He built, and still owns, the fine building at the principal business cor- ner, in which he has his office. Jnsl within the cilv limits he has a noble and fruitful farm of 160 acres. His cherry orchard, once the finest in the State, is still productive. He prunes with his own hands, personally attends to the cultivation of his land, and is'annually rewarded not only with luscious fruits and fragrant flowers, but substantial grain." The Judge married at St. Joseph. Mo., when be was 29 years old, Miss Louisa, daughter of Dr. ]\rartin. of that place. The lady died at San Jose now many years ago. A boy of seven vears, of this union, was lost, and a daughter, is living. In 1870 the Judge mar- ried Miss Alice Bethell, a lady who was then on a visit to San lose. There are two sons of this marriage. One of these. Mr. Leo B. Archer, is a lawyer and was for some years in partnership with his father until the lat- ter's retirement, since which time he has been alone in the practice. CORNELIUS COLE. Cornelius Cole was born at Lodi, Seneca county, New York, September 17, 1822, the seventh of twelve children. His paternal an- cestors were natives of New Jersey, of Eng- lish origin, mingled in marriage wih the Ger- man family of \an Zant. His maternal an- cestors were also English, named Townsend, joined in marriage with the family of Ganong. .\s the time of the arrival of any is at present unknown, all must have come to America at an early date. They were generally farmers and thrifty citizens, the later generations re- siding near Townsendville. New York, a small village named for his grandfather, its first set- tler. A few months later followed his ma- ternal grandfather, who settled near by, .md here these sturdy pioneers battled with adver- sity in the wilds of their forest home, con- ipiering all opposition by the same indomita- i)le perseverance and e.irnest efTort that has characterized their descendants, and especially the subject of this sketch. Here was passed the hitter's earlier years, though surrounded by scenes very ditTerent from those with which bis ancestors bad been t'anuliar : the howls of wolves h.id given place to ibe "church-going bell." the gloi>my savage .and the wandering liunlir b.id been chan.ged as by a magician's w.iiui. uMo ;i circle of society, justly celebrated I lull. ;uid pleasantly remembered for its purity, intelligence and excellence. .\ot mn-.sed in the l.ip of we.ilth, nor \el iiinchcd by poverty. Iiis simmers were siieni in .assisting his father in the labors of the farm, .-md his winters in attend.iuce upon the district school, where he was early distinguished for his proficiency in 530 History of the Bench and Bar of California. mathematics. Later, winters were devoted to teaching school in neighboring districts, and thus in part he earned the means to complete a classical education, upon which he had long been determined. A limited practice in the art of surveying also aided him somewhat in his efforts at self-reliance. For, to his credit be it said, his desire to help himself and thus allow the resources of his father to extend to the education of his younger sisters, was the mo- tive power of his actions, rather than the present inability of his father's means to sup- ply him. His first winter away at school was spent in the academy, at Ovid, Seneca county, whence, though some seven miles from home, his drafts for board, though not the highest, were always duly and promptly honored ; not on some I)ank, but upon his mother's well- stocked cellar ; as, for the sake of economy, he "boarded himself," as the phrase goes. Viv- idlj' does the writer remember the Monday mornings, when about to leave for school, the worthy matron would insist on absolutely loading the sleigh with stores of solid viands, regardless of her son's smiling remonstrances, and the last article was generally a few mince pies, or a basket of apples. And well does he remember the glow of love and pride that flushed the broad brow of the mother, and beamed so kindly from her moist eyes, as she smiled a good bye to her son in. the distance. Who can estimate the effect of such a mother's affection on a young man's future? Upon the subject of this sketch it has borne its fruits. Early manifesting a fondness for learn- ing, being of a thoughtful and studious dis- position, he soon took place among the first for good conduct and ability. Alter leaving Ovid, he entered the cele- brated Genessee Wesleyan Seminary, at Lima, New York, where he vigorously pursued his course of study, taking active part in the lit- erary societies, and obtaining at that early age a good reputation as a sound debater and logi- cal reasoner, rather than as a celebrity in high- sounding periods and classical allusions. His efforts were directed rather to demonstrate the truth and value of a position, than to tickle the ear of the multitude. Having ac- ceptably and thoroughly prepared himself for college, he entered the Wesleyan University of Middletown, Connecticut, whence, after three years of collegiate life, he graduated with hor^r. While here the writer was his room- mate, the last year of his college life, and many personal incidents occurred, now dimly shad- owed by time. They peep out from the dark curtain of past memories, too faint in outline for even a willing pen to portray, but often the subject of pleasant musing. At the close of the first term, we found our funds running alarmingly short. An investigation showed that the senior member of the firm, and in consequence purse-bearer, had made very fre- quent investments in loans to impecunious stu- dents, which proved very generally perma- nent, and necessitated extreme economy for some time to come. This was accomplished by hiring an old woman to cook, and buying our food in bulk; even yet, a pang of regret comes at the recollection of a tub of butter purchased cheap, but only superficially good. Its depths were strong as Homer's heroes. The answer, too, of our butcher, to a remonstrance against tough beef, "that we didn't buy much, and we wanted it to last," did not appear half as witty then as it does now. After awhile the writer, as junior member, was compelled to carry the money, from the fact that an ina- bility to say "No" seemed chronic with his senior, and the two students were consequently enabled to board again. At the time of the graduating class at the house of President Olin, the Rev. Doctor asked : "Mr. Cole, what do you purpose to do?" The answer was: "I intend to study law, sir !" "Well," said the doctor, "a man may be a good lawyer and a good Christian, but it's a pretty tight squeeze." After graduating, the law student was for some time in the office of Hon. William H. Seward, at Auburn, New York, where he was admitted to the bar of the Supreme Court of the state of New York, May i, 1848. In 1849 he started overland to California, arriving there in July of that year, having suffered se- vere hardships upon "the plains." After min- ing some months in El Dorado county, he removed to San Francisco, where he engaged in the practice of his profession about two years. He then removed to Sacramento, where he practiced over ten years. While in Sacramento he was one of the first and most prominent organizers and supporters of the Republican party, when Republicanism was sufficient cause for personal injury and unlimited abuse of its advocates, of which he received a full share, including personal threats and persistent efforts to injure his business. Much of the stibsequent success of Republican- ism is doubtless due to his persistent, fearless and honest support in those hours of trial. He was defeated as a candidate for clerk of the Supreme Court of California, in 1856. dur- History of the Bench and Bar of California. 531 ing whicli year lie edited and publislied tlie Sacramento Daily Times, the leading Repub- lican paper in the State, in the Presidential contest then pending. He was district attorney for the city and county of Sacramento in 1859, i860 and 1861. He afterwards resided a year in Santa Cruz. California, still engaged in his profession. He was married January 6. 1853, to Miss Olive Colegrovc, of Trumansburg, Tompkins county, New York, an estimable lady, with whom he has since lived in great domestic happiness, the union being blessed with nu- merous offspring. In 1863 Mr. Cole was elected to congress by ballot through the whole State, receiving 64.- 985 votes. He served in the thirty-eighth con- gress, on the committees on postofifices and post roads, and Pacific Railroad. He intro- duced and carried through congress the im- portant bill establishing a steam mail line to China and Japan, and several oilier prominent measures. In December. j866. Mr. Cole was elected to the United States senate, to succeed Hon. James A. McDougall, receiving on first ballot in Republican caucus sixty votes to thirty- one cast for Aaron A. Sargent, and on first ballot in joint legislature, ninety-two votes against twenty-six for W. T. Coleman, the Democratic candidate. He entered the senate March 4, 1867, and served on committees for appropriations, claims, manufactures, postof- fices and post roads and revision of laws. As will be inferred from the above, Mr. Cole's peculiar characteristics through a long and honorable career were unswerving in- tegrity of action and intention, tenacity of i)nr- pose, a contempt for wealth anu its influences, a strong sense of justice, and fidelity in friend- ships. Domestic and temperate in habit, and modest in ambition, his honors have been thrust upon him, rather than jjlucked down by a bold hand. The foregoing was written in 1870 by a life- long friend of Mr. Cole and appeared in our "Representative Men of the Pacific," pub- lished in that year. We only have to add that Mr. Cole's senatorial term ended March 4, 1873, when he was succeeded by Aaron A. Sargent. He returned to California and en- gaged in the practice of law in San Francisco. While so occupied liis family lived on land owned by him a few miles from Los Angeles, where a beautiful settlement called Colegrove has since sprung up. In 1888 he joined them there, and followed law practice in Los .\n- geles. A few years later he retired from the profession. He has several grown children, one of them being Hon. Willoughby Cole, of whom a notice appears on another page. The ex-Senator and his good wife are in excellent health, and living in ease and comfort in their fine home at Colegrove. S. O. HOUGHTON. Colonel Sherman Otis Houghton, an eminent member of the California bar for forty years, first at San Jose, and latterly at Los Angeles, has a long American ancestry. The first of the line, John Houghton, came from England in 1635, landing in Boston, at the age of four years. A cousin of his had come from Eng- land a few years earlier, and it is supposed that John, whose father was not with him, was sent to join his cousin, whose name was Ralph Houghton. Ralph and John were among the founders of Lancaster. Massachu- setts. John died in 1684. From him, through his fourth son, Benjamin, Colonel Houghton is descended. Benjamin was born in 1668. His third son. Benjamin, Jr., was father of Abijah Houghton, who was born in I7_'3. Abijah's second son was Abijah, Jr., born in 1747. He married Mary Sawyer, and died in 183 1. Abi- jah Otis Houghton was the offspring of this union, born at Sterling, Massachusetts, June 4, 1796. This was Colonel Houghton's father. Both Benjamin Houghtons were American soldiers in the War of the Revolution, and were among the "minute men" of Lexington. The second Benjamin, at the age of sixteen, was in the battle of Bunker Hill, in his fa- ther's company, and was there wounded twice, and recovering from his wounds, enlisted again. Colonel Houghton's grandfather on his mother's side was also a Revolutionary soldier. His (the Colonel's) mother was Eliza Ferrand. born at Hanover, Morris county. New Jersey, July 4, 1793. She was of Huguenot ancestry, her family belonging to a Huguenot colony which settled in northern Now Jersey, which ihcy purchased from the Duke of York, the original grantee of that region from the Brit- ish crown. Pile Colonel's father, before named, we may add, was a printer in his youth, and .iftiTwanls was editor of various newspaiiers, among them being the Orange County Gacctlr, published at Goshen. New ^'ork. He was there initiated a Mason in June, 1818. Colonel 1 loiigliti^n was born in New York 532 History of the Bench and Bar of California. City, on April lo. 1828. He was educated there at the Collegiate Institute. In June, 1846, at the age of eighteen, he enlisted as a soldier in the War with Mexico — in the First Regi- ment, New York Volunteers. The regiment was ordered to California hy way of Cape Horn, and sailed from New York in Septem- ber, 1846, arriving at San Francisco on March 26, 1847. After a few days Colonel Houghton's company was ordered to Mexico, and took passage on an old bark, the '"Moscow," which had been used for gathering hides along the coast for shipment to Boston. The "Mos- cow" sprung a leak, and the men landed at Santa Barbara, where they remained until a United States man-of-war called for them and took them to Mexico. Colonel Houghton was with the American fjrces in that country until llu- nnddle of Sep- tember, 1848. He was then ordered with comrades to Monterey, California, where he arrived in October, in the United States ship- of-the-line Ohio, the commander of which was Thomas Ap Catesby Jones, who was head of the American navy at that time. Our subject now received his discharge from the army. He went at once to the gold mines, which had been first discovered a few months before, and engaged in mining and trading for about nine months. He then went to San Jose, and settled down. He was admitted to the bar of the old District Court at that place in 1857: to the bar of the State Supreme Court in 1859. and to that of the Supreme Court of the United States in 1871. Colonel Houghton's first triumph at the bar. ;iu(l his first case in the State Supreme Court, was in the very year of his admission to prac- tice in that tribunal. It was a Santa Clara County case. Scott vs. Ward, set forth in the California Reports. I.^h vol., page 458, de- cided in .April. 1850- 'I'hert'in he overturned the whole (biclrine of the law that had ob- tained in this State down to that time. It bad been uniformly held that a grant made to a married jjerson w.is coumiunity property un- der the colonization laws of Mexico of 1824, and the Regulations of 1828. Colonel Hough- ton contended that such grants were gifts, and the separate property of the spouse named in tluni. whether husband or wife. He pre- vailed in both the District and Supreme Courts, and owed his victory to his knowledge of the Sitanish language and the Snanish and Mexi- can laws. The opinion of the Supreme Court in Scott vs. Ward was a great surprise to the bar of the State. In the case of Donner vs. Palmer, arising in San Francisco, and involving the validity of an alcalde's grant of a city lot. Colonel Hough- ton overthrew the settled doctrine of the courts on another question of great conse- (|uence. The decisions had all been that an alcalde's paper delivered to a grantee, setting forth the conveyance of the land, was the real grant, while that functionary's record of the grant, entered, as law required, on his offi- cial register or record, was secondary— in efifect a copy. The Colonel contended that the orig- inal entry was the primary evidence because it was a public record. The Supreme Court sustained this view. In this case, which is reported in 31st California, at page 500, the name of the alcalde had been surreptitiously erased from the paper issued to the grantee. 'ihe decision in this case so disturbed the bar of the State that man}- of its members pe- titioned for a rehearing, and that the bar be invited to attend and discuss the question. This was granted, a number of lawyers at- tending, and all of them taking stand against Colonel Houghton, except Sidney L. Johnson. The court adhered to its opinion. Later, in another case of the Colonel's, taken to the Supreme Court of the United States, that court decided in accordance with the doc- trine laid down in Donner vs. Palmer. This was the case of Palmer vs. Low. Many I)ages, indeed a book, cotdd be devoted to a mere statement of the many other important causes which Colonel Houghton has carried to a successful conclusion in his active and long career. The Colonel was elected to the national house of representatives twice, from the first district, as a Republican. His period in con- gress was four years, from March 4, 187 1, to March 4, 1875. His party was divided in 1875, that is, a branch split off. He was unani- mously nominated again for congress by the regular body, but P. D. Wigginton, Demo- crat, was elected, the Democrats sweeping the State. While in Congress, Colonel Houghton se- cured the first appropriation by the general government for the improvement of the inte- rior harbor of San Pedro. This was in 1871. Colonel Houghton removed to Los Angeles in 1886, and has been in practice there ever since. His only partnershin in that city was with Messrs. Silent and Campbell, as referred to in the sketch of Judge Campbell in tlii< history. When Mr. Walter F. Haas, who had qualified History of the Bench and Bar of California. 533 for the bar in his office, became city attor- ney in January, 1899. he asked the Colonel to accept the position of assistant in the office, and the latter assumed the place, principally out of a desire to be of help to his student and to make his administration successful. He retired from office with his young chief in January, 1901, having rendered the city services of great vahie in important litigation. ' Colonel Houghton is always so titled, from his early and prominent connection with the State militia. He was colonel on the staff of that other distinguished lawyer, as well as law writer, H. W. Halleck, when the latter was major general of the National Guard of Cali- fornia, in the fifties. He had been with Gen- eral Halleck in Mexico. While he was on General Halleck's staff the General and Colo- nel together framed the first militia law of this State. The legislature adopted it as a whole. After the great Vigilance Committee of 1856 they prepared a new militia law, which was also passed as presented. 1 he Colonel has been twice married, both of his wives having been little girls in the ill-fated "Donner party" of 1846, when their parents perished of exposure and hunger. The first Mrs. Houghton was Miss Mary M. Don- ner, daughter of George Donner, and the mar- riage occurred at Santa Cruz, where she was then living, in 1859. She died at San Jose in the following year, leaving a daughter, who still resides with her father. The present Mrs. Houghton was Miss Eliza P. Donner, daughter of Jacob Donner. This marriage took place at Sacramento, in October, 1861. The two Donners named were brothers. Ja- cob was the leader of the "Donner party." By the last marriage there are living three sons and two daughters. One of the sons, Mr. Charles D. Houghton, is a lawyer of Los An- geles. Colonel Houghton keeps in splendid health and mental vigor, and is actively following his profession. Judges and lawyers alike — his con- temporaries of early days and young practi- tioners — speak of him as one of the ablest and worthiest members of our State bar. His residence is in Los Angeles, but he owns a farm in the county. JOHN T. KINKAD'E. This veteran of the Placer county bar is a native of Virginia, and was born on the foot- hills of the Alleghany mountains on the 24th day of January, 1828. He was educated in the schools of Virginia and Ohio, attending last the Wesleyan University at the city of Dela- ware, State of Ohio. He was at one time a classmate with the late ex-President Hayes. At the age of twenty-one years he was ad- mitted to the bar in the Circuit Court of Vir- ginia, which was then the court of last resort in that State. He came to California by prai- rie schooner across the plains in 1849, landing in Hangtown (the first name of Placerville ) on the last day of August, 1849, and like a majority of other pioneers, became an "honest miner." Mr. Kinkade prospected extensively in the mines, from Del Norte to Tuolunme, but he was not a lucky miner. In 1857 he began practice as an all-round lawyer, in civil and criminal work, and has continued in practice to the present time. His home is in Auburn, and it has been in what is now Placer county, since the 14th day of February, 1850, and he has taken an active part in politics and education for many years. For thirty years past he has made a specialty of practice of equity and probate work. He is now seventy-two years of age, and appar- ently but little past the prime of life. He is a lawyer of the old school. He is now the president of the Placer County Bar Associa- tion. EDWARD Sl'.AI.DIXG I.ll'lM 11". niiis vctrran of tlu- bar was Ijorn m Wind- ham county, Connecticut, September 17. 18J4. He is of Rhode Island stock. His grandfather was a colonel in the war of the Revolution, and his father was an officer in a cavalry regi- nicnl in tin- War of 1812. Mr. Lippitl was educated in the common schools of New England and prepared for col- 534 History of the Bench and Bar of California. lege at East Greenwich, R. I. He graduated at the Wesleyan University in 1847, and be- fore graduation was elected principal of a preparatory school at Pembroke, N. H. He was at Harvard Law School in the winter of 1848-9. Edward Everett was then president, and Story, Parsons, Green leaf, and Washburn were professors in the law school. Without completing the course he left for Cincinnati, having been elected professor of mathematics in the Wesleyan Female College. He was ad- mitted to the bar of Ohio in 1853, and com- menced the practice of the law in the firm of Probasco. Lippitt & Ward. In 1857 he and R. R. Hayes, afterward President of the United States, were partners and were elected city attorneys for the city of Cincinnati. They con- tinued in that position until the breaking out of the Civil War in 1861. The bar of Cincinnati at that time contained many men who afterward achieved national reputation. Of the older were Judge Storer, father of the present minister to Spain ; United States Senator Pugh, Governor Tom Corwin, Henry Stanbery, Salmon P. Chase, and others. Of the younger members were R. B. Hayes, Stanley Matthews, Judge Hoadley, Robert Mc- Cook. Geo. H. Pendleton, and others. At the commencement of the war Mr. Lippitt came to California and was elected professor of mathematics and natural science in the University of the Pacific. In 1863 he located at Petal uma and for a time took charge of the public schools of that city, but in 1867 returned to the practice of the law. He took a prominent part in the location and construction of the San Francisco and North Pacific Railroad, and in 1874 became the counsel for that road, and was thereafter general counsel of the same until the death of J. M. Donahue. For eight years he was city attorney for the city of Petaluma and was a director also in the board of agriculture of that district for eight years. Though holding no political ofiice, he has made the canvass of the State at every general election since 1865. He has been a prominent Mason and in 1895 reached the highest ofifice in the State, that of grand commander of the Knights Templar. In 1851 he married Sarah L. Lewis, of Mon- roe, Louisiana, by whom he has five children living. The younger son, Frank K. Lippitt, for the last ten years has been associated with him in the practice of law under the present firm name of Lippitt & Lippitt. Mr. Lippitt, although past seventy-five, is still as vigorous as he ever was in health and in the practice of his profession, with the prospect of a much longer life. THE EDITOR. NECROLOGY OF RECENT YEARS ujat4(>^t^i^l$>^i^^oiJ3 HISTORY of the BENCH and BAR of CALIFORNIA , op ej;) eip . ;-, e^ t NECROLOGY of RECENT YEARS ZACHARY MONTGOMERY. Few men have been belter known in this State, and few Californians have been better known throughout the United States, than Zachary Montgomery. His hfe of seventy-six years ended at Los Angeles so late as the 3d of September, 1900. He was an aggressive man, and made many enemies, but they, those who had knowledge of him, alwa3'S credited him with sincerity. His name came up in a conversation which we had with Mr. George K. Fitch, the veteran Republican journalist of San Francisco, during the period when Mr. Montgomery was assailing with tongue and pen our public schools. "But Zach is honest," observed Mr. Fitch, who had known him since early days. Zachary Montgomery was 1)orn in IvLMitucky, on the 6th of March, 1825. lie grew up on a plantation, and prepared himself for tiie legal profession, but before entering on the practice he spent llie year 1849 in teaching school at Rockporl. Illinois, lie came to California early in 1850. settling in Suiter county, and com- mencing the practice of law at \\\\ya City, across the river from Marysville. lie was dis- trict attorney of Sutter county for two terms. He was a member of the assembly at the twelfth session, which oiutud nn January 7, and closed on May 10. i8()i. Ihe Civil War was close at hand. .Montgitmery was the can- didate of the Sduthern wing of the Democracy for speaker ; I*". F. b'argo of San Francisco, of the Republicans: John Conness, of the Douglas Democrats, and X. Greene Curtis, In- dependent. Montgomery received twenty-two votes out of eighty, and withdrew his name after nineteen ballots. Dr. I'nrm-ll. on win mi the Republicans and Douglas men united, was elected on the 109th ballot. For Montgomery's secession report against pledging the credit of the State to help sup- press the rebellion, and which is rich reading now. the reader is referred to the appendix to the Assembly Journal of 1861. He was a de- vout Catholic, and for his efforts to obtain a sectarian division of the public school fund, see the same Assembly Journal, and also the official report of John Swett (Republican), State superintendent of public instruction, in the .Assembly Journal of the 17th session, ap- l>en(li.\ two. We resided in the Capital city in 1861, and often looked in on the legislature. We saw the following passage-at-arms between Mr. Montgomery and the majority leader on the lloor of the assembly, John Conness, which was f)ublished in the Sacramento Vnxon the next morning : "Some remark was made in a speech by Mr. Conness, referring to Mr. Montgomery, which was somewhat severe, but not now recalled. "Mr. Mont'^omcry — TlK-re are blackguards here. "My. Conness — I recognize one, in the gen- tleman from Sutter. "Mr. Monli^oincvy — ^'ou recognize him as in a mii'ror." Mr. Montgomery married ICllen Fvoy. in 18(1.4 lu' and his \\\W brought suit in S.in b^r.-m Cisco against Robert O. .Sturdiv.mt. on a con- tract he had made with iluui to buy a piece of Lnid which Mrs. Montgomery's mother had conveyed to them. They prevailed in the lower court, but lost the case on .appeal. The case is somewhat interesting to l.iwvers .See .41 Cal. _'95. 588 History of the Bench and Bar of California. In 1864 Mr. Montgomery established The Occidental, a weekly newspaper, in San Fran- cisco. The plant was destroyed by a mob on April 15, 1865, on receipt of the news of Pres- ident Lincoln's assassination — as also the plants of The Monitor, Nezvs Letter, Franco-Ameri- cainc, and The Democratic Free Press. The proprietors of all these papers recovered dam- ages by suits against the city. Mr. Montgomery then practiced law in San Francisco for some years, having a brief partnership in 1869-1870 with Oliver P. Evans, afterwards Superior Judge. From 1880 to 1885 he practiced law at San Diego. Mr. Montgomery kept up his fight against the public school system of the State for twenty years. One of his pamphlets issued in the seventies was entitled "Drops from the Poison Fountain." His course in this regard brought him into great public disfavor. His appointment by President Cleveland to the of- fice of Assistant United States Attorney-Gen- eral elicited much newspaper comment. This was in May, 1885, and an agitation, which some asserted was led by Judge Stephen J. Field, over Montgomery's views on the public schools, created an extraordinary demand for the pamphlet just alluded to, which fairly boomed through the summer of '85. For Montgomery's letter, as Assistant U. S. Attorney-General, on "Slickens," written to the Sacramento Bcc. see that paper of Octo- ber 26, 1885, and the San Francisco Call of the following day. Montgomery held his public office at Wash- ington for four years. He then engaged in law practice in that city. In 1894 he came back to this State, and settled in Los Angeles, where he practiced law until his death. He left a widow and si.x children. He was uncle of the Right Rev. George Montgomery, pres- ent Catholic bishop of Los Angeles and Mon- terey. He died suddenly, from a stroke of paraly- sis. The telegraphic announcement of the event added : "The State has lost one of her most picturesque and widely known pioneers.'' Very true. The panorama of his life attracts the eye. and disposes the mind to self-consulta- tion. PATRICK REDDY Patrick Reddy. at the time of his death, which occurred at San Francisco so recently as June 26, 1900, was and had been for ten years the head of a leading law firm of that city. He was born in Rhode Island, February 15. 1839, his parents being from Ireland. He received his education in his native state, and in February, 1861, came to the Pacific coast and engaged in mining. He studied law in Inyo county and was admitted to the bar in May, 1867, engaging in the practice of his profession there until April, 1879, when he re- inoved to Bodie. He resided in that mining town until 1881, when he opened an office in San Francisco. Mr. Reddy was a member of the constitu- tional convention, representing Inyo and Mono counties, in 1878-79. In 1883 he was elected to the State senate as the representative of Mono, Inyo, Kern, Tulare and Fresno coun- ties, and served four years, being a Democrat, and the senate being Democratic in that period. He was appointed a member of the board of State prison directors in 1889, but had to re- sign the position the following year because of his increasing law practice. He became part owner in a number of paying mines, and was one of the original owners of the Yellow Aster mine of Randsburg. He sold his interest in that mine for a large sum of money. Mr. Reddy was interested as counsel in some of the most important litigation in the history of this State. A press writer well said that as a criminal lawyer his name had been her- alded throughout the West for his successes. He won the gratitude of the miners of the Coeur d'Alene district by* his eflforts in their behalf and his graphic letters to the Call. He left a widow but no children. He was married in Esmeralda county, Nevada, in 1864, to Miss Emily M. Page, and they lived a most happy life together. Captain E. A. Reddy, su- perintendent of the Almshouse at San Fran- cisco, is an only brother. It strangely hap- pened that during his short sickness and at his death, J. C. Campbell and William H. Metson, his law partners, were both out of the city. Mr. Campbell was engaged in the trial of a case at Eureka, and Mr. Metson was in Nome on business for the firm. Hon. James G. Maguire announced the death of Mr. Reddy in the United States Circuit Court. Judge Morrow adjourned the court out of re- spect to his memory. Mr. Maguire paid a feeling tribute to the worth of the deceased lawyer. Judge Morrow said that the court was entirely in accord with what Mr. Ma- guire had said in respect to the sterling worth of Mr. Reddy. "He always observed the re- quircmeats of the profession in endeavoring to assist the court in arriving at the truth. His History of the Bench and Bar of California. 539 dealh was a great loss to the bar." said Judge Morrow. The following incident was telegraphed from Sacramento to the San Francisco papers on the day after Mr. Reddy's death : "One-armed Patrick Reddy proved himself a hero at the postoffice at the noon hour of January 5. 1897. Accompanied by his sten- ographer, he w^s on his way downtown from the Supreme Court chamber, when he noticed a crowd rushing out of the arched entrance to the postoffice. "'What is the matter?' asked Reddy, ac- costing one of the panic-stricken throng. " 'A man is in there trying to murder a woman,' was the breathless reply. I'hat was enough for Reddy. Brushing aside all impedi- ments to his progress, he dashed up the gran- ite steps and into the postoffice corridor. The place had been deserted .save for a man and a woman. The man, P. J. Hulsman. in a fury of rage, was brandishing a cocked revolver and threatening the life of his sister, Mrs. A. T. Krigbaum, with whom he had been quar- reling over some family matter. The woman, helpless in her terror, was expecting the next moment to be her last, when Reddy, with his one able hand, caught the barrel of the revolver and pressed his thumb under the hammer in such a manner that the trigger could not be operated. Hulsman, watching his chance, made a desperate effort to turn the weapon on Reddy, but the latter with his one arm not only pre- vented this, but held Hulsman a prisoner until the police apppeared on the scene. Reddy stopped at a drug store to have his mangled thumb dressed and then continued on down the street as if nothing unusual had happened." HENRY VROOMAN. Henry Vrooman, author of the "Vrooman Act," * who, for some years before his death, was not only a bar leader, but a Re- publican party leader in the banner Republican county, Alameda, was born in Lietclificld, Hillsdale county, Michigan, on the 25th day of July, 1844. His parents removed to Port- land, Oregon, in October, 1852. Henry, now eight years of age, obtained employment on a ranch near Oregon City, where he worked hard during the sununer months and in the winter attended school in the neighboring town of Forest Grove. He continued this course until 1856, when, accompanied by his mother, he went to San Francisco. He remained but *The "Vrooman Act" is an act of the legis- lature of the State of California, providing for the manner of performing all street work throughout the Stale. Since San Francisco adopted a new charter (in effect January 1, 1900), the charter prevails in that city, al- though the law is almost identical. The act was approved March 18, 1885. — Editor. a short time, leaving for Butte cllars. It was tried twice, once in the country and again before Judge Morri.son in San Francisco. The defendant, for which company Mr. Mc- Clure appeared, finally prevailed. Judge John 548 History of the Bench and Bar of California. Garber was associated with Mr. McClure in this case, and it was at Judge Garber's sug- gestion that Mr. McClure determined to change his base of legal operations to San Francisco. This was the most important and wisest step of his life. He removed in the fall of 1875 and practiced law, in connection with Garber & Thornton, for three years. He then formed a partnership with ex-Congressman Coghlan, which, after one year was terminated by the latter's death. A few years later, on the retire- ment of Judge Samuel H. Dwindle from the bench, he joined that distinguished gentleman, and the law firm of McClure & Dwindle long held a conspicuous place at this bar. Mr. McClure's conduct of criminal cases which attracted great public attention, had the effect to spread the popular belief that he made criminal business a specialty. Tliis impres- sion was altogether erroneous. He was ac- complished and equally proficient and efficient in all departments of the law. He was very fond of civil practice, and by far the larj^er part of the business which the firm of McClure & Dwinelle had in hand was of a civil nature. After McClure's removal to San Francisco his life was .one of uninterrupted activity and unbroken success. The Pinnev cases first spread his fame abroad. Pinney, it will be remembered, had to answer to some seventy charges of forgery. Then followed a long and hot struggle in the courts, which resulted in the dismissal of all of the indictments. Mr. McClure was Pinney's counsel throughout the protracted fight, and his patience, industry and ability were then signally exhibited. In the Kalloch cases, wherein it was sought to have the maj'or removed from the ofiice, and also where he was arraigned by Judge Freelon for contempt of court, Mr. McClure made able and successful defenses. Mr. McClure entered political life in 1878, taking an active part in party debate from the Republican standpoint. In the following year his party sent him to the lower branch of the legislature. He represented the tenth sena- torial district. Being re-elected, he was made chairman of the judiciar}^ committee. He was for several years a member of the Republican State central committee. While in the legsla- ture he prepared the well known McClure charter for the city and county of San Fran- cisco a most elaborate and carefully drawn document, which was passed by both houses and received the executive approval, but which the Supreme Court declared was unconstitu- tional. He was admitted to the Supreme Court of the United States in May, 1882. He married at San Francisco Miss Emma Folsom, daughter of A. Folsom, of Maine, March 4th, 1876. Mr. McClure was a logical reasoner, a pa- tient investigator, and had a rare power of persuasion. Of striking personal appearance, pleasing address, broad information, and most happy in the art of expression, he presented himself before his juries full of his theme, grasping like a master the facts and law of his case. Possessing a high order of intelli- gence, and habits of extraordinary industry and vigilance, his success was but the natural se- quence of his character and the reward of his efforts. Mr. McClure died at San Francisco De- cember 8, 1888. EDWARD B. STONEHILL. Major Edward B. Stonehill, district attor- ney of San Francisco in 1887-88, was born in Germany, January 21, 1829. He came to the Cnited States in boyhood, and served in our army through the entire war with Mexico. Coming to California in 1852, he soon went to Nevada, and followed trading and mining until 1859. As a member of the Nevada county rifle company, he took part in the war with the Piute Indians. He fought in the Confederate army, being major on the staffs of General Armstrong and General Joe Selby, taking part at Shiloh and in other great battles. Returning to Nevada city, he began reading law in the office of Garber & Thornton. He was there admitted to the bar. In 1880 he removed to San Francisco. Before he became district attorney, as before stated, he was first assistant in that office under Hon. J. D. Sullivan, 1883-84. Major Stonehill. although a Confederate veteran, was often a guest of honor at Grand Army gatherings. He had a cheerful spirit, and his speech was always full of interest. He died at San Francisco, February 5, 1898, suddenly, of apoplexy, leaving a widow and a married stepdaughter. He belonged to the Masons, Red Men and American Legion of Honor, and the Masons conducted the funeral rites. C. T. RYLAND. Caius T. Ryland, the San Jose banker, and father of J. R. Ryland, attorney-at-law of that city, was a lawyer in his early life. A far- mer's son, born in Missouri on June 30, 1826, he was a California pioneer of July 30, 1849. With his name on the roll of the Society of History of the Bench and Bar of California. .■)4U California pioneers at San Francisco, in addi- tion to that of J. R. Ryland, there also appear those of his five other sons, Caius T.. Jr., Charles B., Dwight E., Francis P., and John \V. The sons of pioneers are entitled to mem- bership in these pioneer societies. Mr. Ryland was private secretary in 1850 to our first Governor, Peter H. Burnett. He and Judge Wm. T. Wallace married daughters of Governor Burnett. With the exception of a brief experience in the mines in 1849, and a short stay in San Francisco in 1850, Mr. Ry- land always lived in San Jose. He was a member of the assembly in 1855, as a Demo- crat, but did not vote for either Broderick or Gwin for United States senator. He was again elected to the assembly as a Democrat at the session of 1867-68, and was chosen speaker of that body. About that time he retired from law practice. He had long before become a wealthy man as the result of judicious invest- ments in real estate at San Jose and San Fran- cisco. TTienceforth he devoted himself to bank- ing. He was a generous supporter of the Cath- olic church and of many charities. His was an unstained life of three-score-and-ten, and ended at San Jose on December 15, 1897. His estate was worth about $3,000,000. ALEXANDER H. LOUGHBOROUGH. Mr. Loughborough was born at Warrcnton, Virginia, in 1834, and was a graduate of Georgetown (D. C.) College. He came first to California in i860, and practiced law in San Francisco until 1867. He then went to Wheeling, W. Va., where he married, and lo- cated at Baltimore, Md. After two years he returned to San Francisco. He acquired a large practice, principally in probate, and a comfortable home near the spot where the si)londid St. Mary's Cathedral was afterwards erected. Tulius George was his partner until Mr. George's death. For a short time there- after, Mr. Wm. Mayo Newhall was associated with him. Mr. Newhall was one of the widely known family of brothers (sons of the pio- neer, H. M. Newhall), who are engaged in va- rious lines (jf business on a lari;c m-jiK'. and whose name is borne by a pretty town near Los Angeles. Mr. Wm. Mayo Newhall ac- quired an interest in Mr. Loughborougli's ex- tensive law business soon after his adnii.ssioii to the bar of the Supreme Court, but aban- doned the profession after a short trial. Mr. Loughborough was a moral and relig- ious man, of the Catholic faith. He was the legal adviser of Archbishop Alemany and his successor. Archbishop Riordan ; and was one of the executors of the will of Mrs. Annie Donahue, widow of Peter Donahue. He was a broiher-in-law of the late Gen. E. D. Keyes. He left a widow and four children. He was of stout build, handsome face, and always the picture of health ; fond of athletics and a great walker. He died suddenly, of apoplexy, at his home, soon after retiring at night, January 28, 1897- A. B. DIBBLE. .A. B. Dibble was born in Lockport. Erie county, N. Y., May 29, 1829. He studied law with Elijah Cook, and shortly after he was admitted to the bar, he went to Nashville. Tenn., where he practiced successfully for a short period. Then he returned to his native State, and when the gold discovery in Cali- fornia was heralded throughout the East he caught the fever, and in June, 1852, landed at San Francisco. He soon struck out for the mines at Sonora, but remained only a few months, and located at Grass Valley in the spring of 1853 with his father. Colonel O. H. Dibble. During those exciting times he considered mining more profitable than his profession, and with his father and the late United States Sen- ator Hearst, took the pick, shovel and rocker, and mined on Gold Flat, midway between Grass Valley and Nevada City. In 1854 li*-' was married to Miss Emma Allen, who had arrived there in 1852. He then commenced the prac- tice of his profession. His first case in Grass Valley was over the ownership of a mule, which he successfully conducted, and received a $50 slug for his services. In early days he crossed swords with such eminent l.iwyers and statesmen as Wil- liam M. Stewart, T. B. McFarland, Aaron A. Sargent, Addi.son C. Niles, Judge David Bcl- (len. Thomas P. Hawley. Niles Searlcs and others, and was accounted .in excellent young lawyer. When the Wa>lioc excilenienl brt)ke out he left ;i lucrative jjractice to luuit for the i)recious metal. When the Hurry subsided he returned to (irass Valley and ever after made his home there. He was actively identified with much of the important litigation which in early days was very profitable. Dibble made much money but like most of the early pioneers, permitted it to slip through his hands. He was always active in politics, but never iicid ofiice except 550 History of the BoicJi and Bar of California. in 1883, when Governor Stoneman appointed him fish commissioner. In 1856, however, he was one of the Know-Nothing nominees for congress, but was defeated. Ever after in his life he was a staunch Democrat, spending money freely to advance the cause of the party. For a short time in the fifties he served as Brigadier General of the State militia. He died at Grass Valley, Feb. 16, 1896. A widow, two sons and one daughter survived him; also two sisters, one residing in Massa- chusetts and one in New York. GEO. R. B. HAYES. Geo. R. B. Hayes was stricken down in the prime of life and in the full tide of profes- sional prosperity. He was a nephew of the early-day lawyer, William Hayes, and was born in Belfast, Ireland, on May 22, 1847. He was educated at Chichester Academy in that city, came to California in August, 1863, and was admitted to the bar of our Supreme Court on April 5, 1869. At the sesson of the legis- lature. 1869-70, Mr. Hayes was a member of the assembly from San Francisco and was chairman of the committee on military af- fairs. He was of Democratic politics. In No- vember, 1886, he was elected a member of the board of freeholders which framed a charter for the city and county of San Francisco, but which instrument was defeated at the election held to pass on the same, April 12, 1887. Associated with Mr. Hayes and his uncle for a short time was John A. Stanly, before the latter's becoming County Judge in 1870. In 1881, Mr. William Hayes having died. Judge Stanly being in private life, and Thomas P. Stoney, ex-County Judge of Napa, having re- moved to San Francisco, the firm of Stanly, Stoney & Hayes (Geo. R. B.) was formed, and lasted for ten years, until Judge Stoney's death. The firm was then Stanly & Hayes until, in 1894 these gentlemen were joined by Garret McEnerney and II. W. Bradley. Mr. Mc- Enerney withdrew after about one year, and at the death of Mr. Hayes the firm was Stan- ly, Hayes & Bradley. In the great case of General D. D. Colton's widow against the rail- way kings, tried before Hon. Jackson Temple, Superior Judge of Sonoma county, in 1884-5, the trial of which engaged an array of the best professional talent on both sides, Mr. Hayes especially distinguished himself on the part of the plaintiff. For fully twenty years there w^as no more laborious leader of the met- ropolitan bar, and few who enjoyed a larger revenue from the practice. He died suddenly, on April 5, 1896, and was buried with im- posing ceremonies from the great cathedral on Van Ness avenue. A large concourse attended and Archbishop Riordan, who had been his client, spoke fitting words of eulogium. Mr. Hayes left no issue. His wife, who sur- vived him. was a daughter of his uncle and first law partner. WILLIAM BLANDING. Captain Islanding was born in South Caro- lina in 1818, of English-French lineage. His father was a distinguished lawyer who in the nullification days, supported President Jack- son and was tendered by the latter the post- master-generalship, but declined the honor. Mr. Blanding's mother was a daughter of the celebrated South Carolina chancellor, De Saus- sure. Himself graduating at the South Caro- lina college in his eighteenth year he became tutor there of mathematics. Resigning that place he turned to law, and was admitted to the bar in 1840. In 1846 he was among the first to enlist in the army for the War with Mex- ico. He raised a company in Charleston, and, as captain, led it into the struggle, in which he fought to the end. "Captain Blanding," said General Quitman, in his report of the capture of the City of Mexico, "whose conduct happened to fall under my own eyes, was con- spicuous for his bravery and efficiency." Captain Blanding came to San Francisco in 1854, his family following the next year. In 1855 President Pierce appointed him United States district attorney for California, and he held the office about two years. He was presi- dent of the Ophir Silver Mining Company during the great period of mining development and litigation, 1860-65. He w^as a director of the State Agricultural Society, and did a great deal to encourage the introduction of silk cul- ture in this State. Captain Blanding was a veteran of the Mexican War. He was appointed a State harbor commissioner by Governor Irwin on February 28, 1876, and held the office until 1883. He died at San Francisco on October 25. 1888. His wife died on September 22, 1885. Their .son is Mr. Gordon Blanding, who has been in practice at the San Francisco bar for many years. CLARK CHURCHILL. Clark Churchill, who was a well-known at- torney in San Francisco in the years 1867-77, History of the Bench and Bar of California. 551 had formerly been the office attorney of Gen. Chas. H. S. Wilhams and Lorenzo Sawyer. Later he had practiced in Virginia City, Ne- vada. During his second stay in San Francisco he married, built up a considerable practice, and bought a home in the Mission district. He removed to Arizona in 1877. His first loca- tion was at Prescott, where he obtained a fine law business. He was a native of Penn- sylvania, and had in him a strain of Indian blood, which his physiognomy suggested, and which, indeed, we learned from his own lips. He was a man of high temper, which he usually held in good control ; and, indeed, it was well said of him at his death that he was a man of great force of character and a natural leader. He was appointed attorney general by Gover- nor Tritle, and was an efficient and painstaking officer. In 1880 he became interested in the construction of the Arizona canal, in the Salt River valley, and had since been closely iden- tified with the interests of that section. He went from Prescott to Phoenix to reside in 1886, and had always stood at the head of the Phoenix bar. For several years he was coun- sel for the canal companies on the north side of the river, and conducted several cases of great magnitude in the Arizona courts. He was one of the attorneys who prepared the de- fense against the great Reavis claim, which was shortly before his death decided in favor of the people. General Churchill was a Republican and for years a power in Arizona politics. Of late years he had not taken an active part in politi- cal contests. He had been a prominent Mason and Odd Fellow, but upon uniting with the Catholic church a few years before his death, he withdrew from all secret societies. He left a widow but no children, and considerable property in Phoenix, and vicinity. A residence which he had in course of construction at his death, was designed to be the finest in Ari- zona. General Churchill died at Phoenix, April 4th, 1896. His age was fifty-nine years. S. G. HILBORN. Samuel G. Hilborn, at different periods. United States district attorney, member of the constitutional convention, and congressman, was born in Maine, December 2, 1834. He was graduated from Tufts' College, Massachusetts, in 1859, and was admitted to the bar in Port- land. Me., and settled in Vallejo. Cal., in 1861. During the early years of his life there, while pursuing law practice, he was successively city trustee, school director, and a county super- visor. He was state senator at the sessions of 1875-76, and 1877-78. A member of the constitutional convention of 1878, he, in the following year, opposed the adoption of the new constitution. He was United States dis- trict attorney at San Francisco, 1883-86. In November, 1892, he was the Republican candi- date for representative in congress from the third district, and received the certificate of election, but his Democratic opponent, W. B. English, contested and was awarded the seat. He was elected to this office in 1894. and again in 1896, and was defeated for the Republican nomination in 1898 by Hon. Victor H. Metcalf, who was elected his successor. When he be- came district attorney, he removed from Val- lejo to San Francisco. When he left that office he fixed his residence at Oakland. It was generally understood that President McKinley would have appointed him minister to Portugal had not his death prevented. This occurred at Washington city, April 19, 1899. He left an unmarried daughter. M. C. BLAKE. I^Iaurice C. Blake, who was so long on the bench in San Francisco, and who was for a term mayor of that city, was born in Maine on October 20, 181 5. He was a graduate of Bowdoin College, practiced law in Camden, served in the legislature, and was collector of the port at Belfast. He came to San Francisco in 1853. in a steamer by way of Cape Horn. He was an active member of the great vigi- lance committee of 1856, and when Judge Terry stabbed Hopkins, an officer of that organiza- tion, he advised that, in the event of Hopkins' death. Judge Terry be hanged. He was generally accounted a man of calm judgment and enjoyed the public confidence fully and to the last. The people's party, born of the vigilance committee, elected him County Judge in 1857, and he served until April, 1862. The office of Probate Judge being created, the same party elected him to that office for a full term of four years, ending January, 1868. He served in the assembly at the eighth session (January-April, 1857), being among the very few Republicans in that body, and was chair- man of the San Francisco delegation. It was the session when Broderick and Gwin were elected United States senators, Judge Blnkc voting for Edward Stanly and A. A. Sargent. .\ftcr four years of quiet law practice, the Judge was elected to the bench of the munici- pal criminal court, defeating the Democratic in- cumbent. Hon. Dclos Lake. We were present 552 History of the Bench and Bar of California. JOHN B. HARMON. when he sentenced the Broiherlon forgers to the State prison. He intimated that he was not sure that he ought not to make their terms of imprisonment longer. "We ask no favors of this court!" the elder brother cried out. Tlie Judge said nothing. He told us afterwards that Chief Justice Wallace, of the Supreme Court, had said to him that if he, Wallace, had been in his, Blake's, place, when the prisoner hurled his defiance, he, Judge Wallace, would have added soine to the term of imprisonment already announced. (In this connection, see the Pickett contempt case.) Judge. Blake was re-elected in the fall of 1875. by an unusually large majority over Frederic Hall. His second term of four years just ended with the coming in of the new con- stitution. After two years he became mayor of San Francisco, being chosen over a strong man of the Democracy, Robert Howe. The city officers then elected, by a special act of the legislature, only held for one year, so as to make the elections fall on even-numbered years. Judge Blake, as a matter of course, made a most vigilant and faithful mayor. His party renominated him in 1882, but the Democrats put up Washington Bartlett, who had long enjoyed the favor of the Bulletin, and who now received that journal's support, and was elected. After his term as mayor, Judge Blake went into law practice with his nephew, M. B. Blake. The latter died on February 8, 1886, a native of Maine, aged forty-one years. Shortly there- after, Judge B. became associated with Geo. N. Williams and Edward C. Harrison. After about three years Mr. Williams withdrew. The firm was Blake & Harrison at the time of the Judge's death, which occurred on September 27, 1897. The Judge was a bachelor. During the trial of the great and sensational divorce case brought against Senator Sharon in 1885, when it was thought a commission would be necessary to ascertain the character and value of the defendant's property, the at- torneys for the respective sides submitted lists, one on each side, of names of re.sponsible cit- izens, from which the court might select the commissioners. Judge Blake's name, and his only, appeared on both lists. In the summer of 1882, Gen. W. H. L. Barnes went independ- ently to Sacramento and made a strong plea before the Republican state convention for the nomination of Judge Blake for Governor. The General was at his best, showing exceptional enthusiasm, but M. M. Estee was nominated. General Barnes' speech is to be found in full in the dailies of that time. John B. Harmon was born in Ohio in 1822, and was admitted to the bar in that State after graduating from Yale College. His earliest work at the bar was at New Orleans, from which city he came to California in 1853, in company with Milton S. Latham by way of Panama. He and Latham were partners in Sacramento for a few years. He was in Vir- ginia City, Nevada, in its days of prime, and removed to San Francisco in 1864. It was in June, 1893, that he told us the following incident : "I might have been elected Gover- nor of California in 1855, but could not bring myself to accept the Know Nothing nomina- tion. That short-lived party, which elected J. Neely Johnson Governor in that year, really wanted for its standard-bearer a man who had been a Democrat, as most likelv to defeat the Democratic nominee. Johnson had always been a Whig. Influential leaders of the new party were opposed to him on the score of availability, and it was arranged to present my name to the State convention. But I was not a Know Nothing, and. as it was a secret organization, I had to be initiated. The elec- tion was to take place in the fall of the year, and the State convention was to meet in a week or so. I was introduced to a Know Nothing lodge at Sacramento, as a candidate for initiation. While the oath was being put to me, my hand uplifted, when it came to certain words proscribing Catholics, my hand went down. It was a painful moment to all of us. I said: 'Gentlemen, this ofifends my sense of justice. Let me withdraw;' and I was escorted out, to remain in private life." Mr. Harmon was associated with P. G. Galpin in practice at San Francisco from 1877 to 1881. Some years later he and D. P. Belknap were together for a considerable period, but their names were not associated. In 1863, by act of the legislature of March 28th, Mr. Harmon and Hon. John Currey and H. P. Barber were appointed a commission to compile and revise all the laws of this State. (See Laws of 1867-68, page 435.) Mr. Harmon like his old friend, the eminent \)v. John F. Morse, Sr., was an enthusiastic Odd Fellow. The doctor organized the order in Germany, and Mr. Harmon performed the same mission in Australia, New Zealand and Tasmania. Mr. Harmon was grand master of the order in this State and repre- sented it for ten years as delegate to the sovereign lodge. In 187 1 he was elected grand sire of the sovereign lodge of the world. History of the Bench and Bar of California. 553 He died at his home in Berkeley on the 7th of February, 1897, leaving a widow, a daughter, Mrs. Julian Le Conte, and two sons, Dana Harmon, mining superintendent in Nevada county, and Dr. R. Harmon of Oakland. CLARENXE R. GREATHOUSE. Gen. Clarence R. Greathouse, practically prime minister for many years of the kingdom of Corea. resided and practiced law in San Francisco from 1870 to 1886. He was asso- ciated first with Louis T. Haggin, son of James B. Haggin, then with William M. Stewart, next with Gordon Blanding, and from 1881 to 1884 with Mr. Blanding and Hon. Wm. T. Wallace. He was an editorial writer on the Examiner in 1885-86. In 1886 he went to Yokohama, vmder ap- pointment of President Cleveland, as U. S. consul-general for Japan. At the close of his four years' term in that office, the Corean gov- ernment secured his services as foreign ad- viser. He achieved a high reputation for wisdom in council during the troubles that afterwards afflicted that country. Rev. George Heber Jones, a missionary in Corea, said in an interview with the San Francisco Call of March 31st, 1897, that Gen. Greathouse had been instrumental in introducing judicial reforms in that country which put an end to a long era of corruption and cruelty. Gen. Greathouse was a near rela- tive of Lloyd Tevis, the capitalist. He reg- istered as a voter in San Francisco on Aug- ust 8, 1871, as a native of Kentucky, then aged 27 years. He died in the Corean capital, lamented by the king and people, on the 21st of October, 1899. He was buried there with great ceremonies. The General was never married. His mother who was 75 years of age when he died, was re- siding with him. He left a will making her executrix, and his sole legatee. He had personal property in San Francisco worth ten thousand dollars, and the mother was ap- pointed executrix by the San Francisco Su- perior Court on the 28th of December, 1899. Pending the usual course of administration, she returned tn iicr home in Kentucky. Gen. Greathouse did not relinquish his American citizenship. JOHN E. ABBOTT. Fourth ward in 1885-86. and was chairman of the judiciary committee. During this period he was counsel for Mrs. Hannah Ingram in her litigation with her husband, and was shot by the latter and seriously wounded. In the spring of 1887 he bought a residence at Mountain View and embarked in agriculture. He was there mortally injured by a runaway horse in November, 1887, and on the i6th of that month died, aged fifty-four years. CHAS. A. TUTTLE. John E. Abbott was admitted to the bar in his native state. New Hampshire. He came to California in 1858. and settled in San Fran- cisco in 1882. He was supervisor for the Chas. A. Tuttle was born in Genessee county, New York, November 10, 1818. He was a descendant of William Tuttle, who settled in Connecticut in 1671. He attended Hobart College at Geneva, belonging to the class of 1844. He moved to Milwaukee, Wis., in 1845, and was admitted to the bar in that year, and practiced his profession there until early in 1849. In the same year he left Mil- waukee with a party of five, and arrived, in Placer county, California, in October, 1849. Mr. Tuttle engaged in mining on the Ameri- can river, and after about a year, returned to Milwaukee, and in 1851 came back to Cali- fornia with Mrs. Tuttle. After making an unsuccessful attempt at merchandising, he opened a law office at Michigan Bluff, in 1853. Leland Stanford was the justice of the peace of that place at that time. In 1856 Mr. Tuttle moved to Auburn, the county seat. In 1853 he was elected a member of the Slate senate, and represented Placer county during the first memorable Gwin-Broderick contest. He became a Republican almost at the organization of the party. He was chair- man of the Republican State convention held in 1859. and was an elector on the Republican ticket for i860, and as such stumped the State. In 1863 he was appointed reporter of the Supreme Court, and held this office until 1867. He was afterwards appointed as one of the commissioners on the revision of the codes, in company with Sidney L. Johnson. He de- clined an appointment to the bench, and also as a regent of the University of California. In 1867 he was elected as a member of the assembly, and served in the session of i86--(J8. In 187 1 he was reappointed as reporter of the Supreme Court and served until 1871. Mr. Tuttle's industrious life ended in 1888 at Au- burn. His name is indissolubly connected with the history of the State. He was a man of the strictest integrity and absolutely fear- 554 History of the Bench and Bar of California. less in the defense of what he believed to be right. He was not an eloquent talker, but was possessed of a wonderful reasoning faculty. He was always interesting because of his earnestness and sincerity. His logic was of the very best. He was a student, and had the faculty of communicating to others the re- sults of his researches. He was particularly kind and encouraging to young practitioners, and there are many able lawyers who will always have a kindly remembrance of Chas. A. Tuttle. The legislative journals and the California reports will perpetuate his fame. JOHN R. SHARPSTEIN. John R. Sharpstein, who was a Justice of the Supreme Court from its organization, un- der the present constitution, January 5, 1880, until his death at the end of 1892, was born in .-ichmond. Ontario county. New York, May 3, 1823. The family removed, when he was twelve years of age, to Romeo, Michigan, and there he was educated, at a branch of the University of Michigan. He was admitted to the bar of the Supreme Court of that state in the year 1847. About that time, and at Romeo, he was married to Miss Kate Crit- tenden. Shortly afterwards he removed to Wisconsin, and in 1850 was elected district at- torney of Kenosha county, and served one year. In 1851 he was elected a member of the state senate. He resigned his seat in that body to accept the position of United States attor- ney for the district of Wisconsin, tendered him by President Pierce in 1853. This office he held to the close of President Pierce's ad- ministration, and in 1857 became postmaster of Wilwaukee by appointment of President Buch- anan. In i860 he was a delegate to the National Democratic convention at Charleston, S. C, where he supported Stephen A. Douglas for the Presidential nomination. Thereafter, im- til his party became reunited, he acted with the Douglas wing. Leaving the office of postmaster after a four years' term, he became a part owner of the Milwaukee Daily Ncivs, and edited the paper. It was the leading Democratic journal of Wis- consin. In 1862 he retired from journalism, and in that year was elected to the assembly. At the close of the legislative session, in 1863, he resumed the practice of law at Milwaukee, in partnership with H. L. Palmer, a lawyer of distinction, who afterwards, in 1868, was tem- porary chairman of the national convention that nominated Horatio Seymour for Presi- dent. Judge Sharpstein left Wisconsin, where he was so well estal)lished, because of the sevcrit}' of the winter weather. He came to California in 1864, locating in San Francisco. On the eve of his removal, the Bar Association of Milwaukee unanimously passed resolutions commending him to the bar and community to which he was going, and testifying to his "ability, moral worth, and gentlemanly bear- ing." Resolutions of like tenor were also adopted at a citizens" meeting, earnestly bespeaking from the shores of Lake Michigan a cordial reception of a true-hearted gentleman in the capital of the Pacific Ocean. In San Francisco, Judge Sharpstein prac- ticed law in partnership, successively, with John H. Smythe. Horace M. Hastings and Charles E. Travers. In January, 1874, he was appointed by Gov- ernor Newton Booth to fill the vacancy on the bench of the Twelfth District Court, as suc- cessor of Hon. E. W. McKinstry, who had been elected Superior Judge. He served two years, and was nominated for the same office, but, with his party, was defeated at the polls. In 1879, at the first election under the present' constitution, he was chosen, as a Democrat, one of the associate justices of the Supreme Court. In casting lot, as the constitution pro- vided, for the several terms, he drew a term of three years. He was again nominated by his party in June. 1882, and was elected for a full term of twelve years. He died in his high office, on December 27, 1892. On the opening of the Supreme Court, January 23, 1893, memorial resolutions of the San Fran- cisco Bar As.sociation were presented and read by Thomas I. Bergin. one of the bar leaders of the State for a long period. Therein the la- mented jurist was well pictured as "of com- manding stature and imposing presence. His features were regular, his eyes blue, and fore- head large and expansive. His expression was mild and pensive, his manners simple, cor- dial and unaffected, his voice pleasant, his conversation agreeable. His long and varied experience in the many paths that he had trod through life had brought him in contact with all kinds of men. and from all parts, not only of our own country, but of the world." Chief Justice Beatty responded feelingly, and History of the Bench and Bar of California. 555 ordered that tlic tribute of the bar be spread at length upon the minutes of the court. Judge Sharpstein's widow and children are living in San Francisco, where one of his sons, Mr. W. C. Sharpstcin, is a nieinber of the bar. SIDNEY V. SMITH. Sidney V. Smith was in the full tide of prosperity at the San Francisco bar for over thirty years. He was a "Philadelphia law- yer," born and reared, as well as fitted for the bar, in that city. Coming to San Francisco in 1852, he was associated for a few years with Hall McAllister, Jonathan Edwards and Julius K. Rose, the firm name being McAllister, Ed- wards & Rose. He afterwards practiced alone, until 1870, when his son became his partner. Thereafter to the end of his life the firm was "Sidney V. Smith & Son." Mr. Smith was of quiet temperament, studi- ous and scholarly, of fine legal attainments and literary taste, and, as we took occasion to say of him when he passed away, although wedded to a jealous profession of which he was very fond, he inclined to those avenues thereof that enabled him to keep "the noiseless tenor of his way," "far from the madding crowd's ignoble strife." His clients were heavy business men, bankers, like the Security Sav- ings Bank and the Borels. In the celebrated Black will case, which was tried four times, he was counsel for the widow and execu- tors. Like C. Temple Emmet, Mr. Smith's bear- ing was conspicuously English, and his i)er- sonal appearance and the green silk bag in which he carried his papers to court, made him an Englishman to the casual observer. But such was the style of the old Philadelphia bar. Mr. Smith's irreproachable career ended at his home in San Rafael, on September 25, 1885, when he was sixty-seven years old. He had been in poor health a year or so, and had recently returned from a visit to his native city. His son, who bears his full name, and who was his partner for fifteen years, has long conuuanded a larger praelici.- tliaii the fatluT e\'er did, and umi-e divtTsitied. lie was ad- mitted to practice in \^(f/. and was (|uite young at the bar when we heard him ni.ake a very lucid argmnent l)efore the .Su])renie C'ourl. Tlie Chief Justice and one of his associates, upon leaving their seats, passed through the library, which we had just entered, and were heard exchanging words of compliment to the young lawyer's ettori. Mr. Smith possesses extra- ordinary quickness of apprehension, and, to use an expression of Macaulay, "the most sure- footed judgment." His success has been com- mensm-ate with his profound knowledge of the law. and his brilliant powers of mind He ,s a man of family, having married in Oc- tober, 1884. the accomplished widow of J R Pnngle. the attorney, daughter of Samuel F Lutterworth, the capitalist, who died in 1875. NATHANIEL HOLLAND. Nathaniel Holland was a pioneer of June 8. 1849. He was president of the board of assistant aldermen December, 1851, to No- vember, 1852; school director, 1872-73; a mem- ber of the assembly, 1856; president of the Pioneers. 1883-84, and United States chief supervisor of elections from 1880 to 1802 He died July 31, 1894, aged S2 years. He was a native of Pennsylvania. Mr. Holland and the beloved Judge Edward Norton, of the old Twelfth District Court, bachelors 01 about the same age. had the habit for years of taking extended walks every Sunday afternoon. They would set forth from Holland's office, and return after a three hours' stroll, having walked side by side the whole way, without the exchanee of a single word. E. D. WHEELER. Looking back over the long line of argo- nauts we see few names standing out more attractively than that of E. D. Wheeler, in law. politics and iniblic life. This California pioneer w;is horn on the 8th of Jamiary. 1828, in Roxbuiy. Connecticut. He was one of ten children. His father was of Welsh, his mother of English descent. His boyhood was passed in Cayuga county. N. Y. He mastered the branches of learning there taught in the common schools, and at fifteen entered the academy at Jordan, Onondaga county, where he pursued his studies for two years, lie intended to take a collegiate course, but. just at a time when the avenues of learn- ing wire bro.idening and widening, his family niovi'd to the then far west and settled in Uock county, Wisconsin. Here the rough life of the frontier and the absence of advanced schoools closed his career so far as education in .inv inslilution of learning was concerned, lie wiut to work on the farm, virgin soil of a new home. About this lime his father was killed by an accident, leaving a widow and nine 556 History of the Bench and Bar of California. children. E. D. Wheeler, being next to the eldest child, had the burdens of manhood thrown upon him before he reached man's es- tate. He turned away from thoughts of worldly ambition, worked steadily in the interest of the large family, and when the cold winter closed in. he taught school. When only nineteen years old he was employed in all the justice's court cases in the township. He had gathered no legal knowledge, but possessed marked ability as a debater, and displayed it in the societies of the young, then much in vogue. in the spring of 1847 he went to Belle- ville, Illinois, and passed a period of two years that gave direction to his future. There was an able bar at Belleville. Lyman Trum- bull being at the head, and next to him. per- haps, was Don Morrison, a brother to our late chief justice. Mr. Wheeler studied law in Don Morrison's office. He laid his books aside when the California gold fever reached his town, and came across the plains in a small train, reaching Placerville on August 26. 1849. He went to Sacramento, and fol- lowed merchandising and steamboat freighting for a few months. He settled in Marysville. then known as Nye's Ranch, in February, 1850. Then for seven years, from January, 1853. a very long period in the early history of this State, he enjoyed a great reputation as a lawyer. First, after a two months' residence, he ran for the office of county clerk, and was elected. He held the office for two years, doing most of the work, and reading law in spare hours and at night. He passed the Su- preme Court examination with high honor, and was admitted to the bar on April 15. 1852. After a trip to the States, he opened his law office in Marysville in January. 1853. He amassed a comfortable fortinu' in a few years. For a time he was a member of the Marysville city council, and was once public administrator, which latter office he resigned. He was elected State senator in 1858, as a Douglas Democrat. When his term ended, in i860, he removed to San Francisco. His first partnership there was w-ith Hon. O. C. Pratt. This soon ended, and he followed the practice alone for some twelve years, interrupted by a six months' stay, in 1869, at White Pine, Ne- vada. In 1870-71 he was in law practice in San Francisco, in partnership with John A. McQuaid (Wheeler & McQuaid). The Nineteenth Judicial District Court was created in 1872, and on March 8, of that year Governor Newton Booth appointed Mr. Wheeler Judge of the new tribunal. Judge WHieeler's court was crowded with business al- most from its organization, and before him were tried some of the most important cases in the history o fthe State. In the fall of 1873 the Judge was nominated for the bench he then held, by the Republican and People's parties, his Democratic opponent being Hon. William P. Daingerfield. He was elected for a full term of six years. His full term just ended as his court and all others in the State, passed out of existence w-ith the old consti- tution. In 1879, which was the closing year of his court, he was one of the Republican candidates for Supreme Judge. His whole judicial ticket, however, was defeated with one exception. After leaving the bench. Judge Wheeler practiced law in San Francisco for fifteen years. In 1881-82 he was in partnership with W. W. Hoover (Wheeler & Hoover), and in 1892-93 with James A. Devoto (Wheeler & Devoto). He married, at Marysville. November 14, 1854, Miss Julia A. Rowe, daughter of General George Rowe, a prominent lawyer of that place. He had two sons, one of w'hom is at tlie liar at Eureka: the other left the law for the insurance business. The Judge died at San Francisco in Jan- uary, 1895. —THE EDITOR. MASTERS WHO FOLLOWED THE ^^ PIONEERS =/« .J* i&;i&Gjbdi3i^C4ciei]3tI|^(&t HISTORY of the BENCH and BAR of CALIFORNIA ep oj^ Lj, frp rjn «5p c,^. ep , MASTERS WHO FOLLOWED the PIONEERS JOSEPH G. BALDWIN. 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 re- ceived lessons in the clerical details of law practice, which were of service to him in after life. At seventeen years of age he took edi- torial charge of a newspaper in Buchanan, Rockbridge county. Two years later he re- moved to Alabama, "impelled," as he tells us in his "Flush Times," "by the gentle momen- tum of a lady's slipper." He does not, how- ever, disclose who was the fair girl who dis- appointed him. It was, we have it from an authentic source, a Miss Menzies, who after- wards married a son of Chapman Johnson. This Chapman Johnson was the leader of the Virginia bar, and possibly the greatest law- yer of his day and generation in the civilized world, Chief Justice Marshall excepted. While deputy clerk and editor young Bald- win had improved his leisure hours bj' read- ing 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 Kali), Alabama, where he continued liis law studies and awaited his opportunity for admis- sion to the bar. At Dc Kalb he met S, S. Prentiss. Between the two a very cordial friendshii) sprang up, which proved enduring. 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. Felt on — aft- erwards his son-in-law. Upon attaining his majority. Baldwin removed again — this time to Sumpter county, Alabama, where he was ad- mitted 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, as 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 Presidential 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, removed 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 ju- ries.) He had a large practice. The time which he could spare from his professional duties he devoted to literature. The i)ro(litct was his celebrated "Flush Times," a volume which has been the delight of two generations. "It was," said his friend Howard, of Los An- geles, "the first literary essay of a mind crowded with thought and replete with exquisite im- agery — the primitive yield of a rich virgin soil — the gleeful bubbling of a full, and. till then, undisturbed fotmtain. * * * Ajiart from the emanations of convulsing wit that scintil- late and sparkle along eacii 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, 560 History of the Bench and Bar of California. and it almost groans under its affluence of cun- ning fantasies of language, and merry con- ceits 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 Ran- dolph of Roanoke. Including Notices of Many Other Distinguished American Statesmen." Judge Baldwin married in Alabama a Miss White, by whom he had si.x children — four boys and two girls. He removed with his family to San Francisco in 1854. Arriving at a comparatively early day, bringing an en- viable reputation as a lawyer and man of let- ters, and finding here a considerable 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 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 he arrived in California until his death. In September. 1857, Hugh C. Mur- ray, Chief Justice of the California Supreme Court, died. Peter H. Burnett, appointed by Governor Weller, acted until the next elec- tion, when Joseph G. Baldwin, who had re- ceived the Democratic nomination, was chosen by the people. Judge Baldwin was on the bench of the Cal- ifornia Supreme Court from October 2, 1858, to January i, 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 Fran- cisco and X'irginia City, following his pro- fession in both places. These were "flush times." and. like the most eminent lawyers who were here at that date, he reaped a golden harvest. His oldest son. Alexander W. Bald- win, 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. McKin- stry, from the bench. November 17, 1869. A. W. Baldwin was killed in that month by a railroad accident in Alameda county. Califor- nia. Although but twenty-eight years of age. he was then judge of the United States Circuit Court for the state of Nevada. Judge Baldwin had three other sons, all of whom were unusually gifted, exhibiting at an early age quickness and originality, and re- markable 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.. liis three other sons, Joseph G., Jr.. John W., and Sidney, and his lamented son- in-law, Jolm B. Felton. Judge Baldwin's distinguished faculty as a lawyer was his logical power. He was a strong man as a reasoner. His facility of il- lustration was very great. In this his perennial wit and humor were always serving him. He was masterly in reply. Rarely in California, but many times in Alabama, he displayed his powers before a jury. He would often com- press a whole case in an epigram, or would throw off a sentence that would illuminate a principle. Rapid in thought, clear in vision, he comprehended a case at first glance. Un- derstanding it, he made others understand it by his illustration. And who could step irto 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 un- der 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 ex- cellent, his information wide. In conversation he was irresistible — but on the platform he could not talk like Prentiss or Baker. Who could? Given a melliflous voice, Baldwin would have made a great popular forensic ora- tor. 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 unconquerable weapon was the pen. Baldwin's fame as a jurist will rest chiefly upon his opinion in Hart vs. Burnett (15 Cal. 530). Baldwin's opinions cover several volumes of the California Reports. Sometimes over- ruling prior decisions, they remain themselves unquestionable. They partake much of the History of the Bench and Bar of California. 5G1 qiality of his stj-le as a writer, and are coii- setuently sprightly and vigorous. His unfail- ing fountain of humor bubbled over even on the bench. Off the bench it was character- istic and universal. His jests, anecdotes and stores still oass current among the bar, re- taining 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 invest- ing this stern science with the light mantle of mirh. Baldwin was once badly disturbed by Tod Roliinson, father of C. P. Robinson, and once District Judge at Sacrainento, and, later, Su- preme Court reporter. Robinson, when he w:)uld warm up. was a fine talker. This oc- casion was also in the Supreme Court, when Bildwin was on the bench. A certain con- stible given a writ of execution against the pioperty of a defendant in a suit, levied on and sold property belonging to a man who was no oarty to the suit. The latter sued for camages and instead of suing the constable ilone, made the sureties on his official bond co-defendants also. He recovered damages in ;he District Court against all the defendants, and the latter appealed. Robinson appeared in the Supreme Court to uphold the judg- ment obtained in the District Court. Baldwin interrupted his argument to inquire if the counsel had ever considered the distinction be- tween the acts done virtutc officii and acts done colore officii. "It seems to me," he ob- served, "there would be as much propriety in joining the constable's bondsmen with him, in a suit against him for damages for assault ; as much propriety as joining them in this ac- tion." With great dcliljcratiun Roliinson 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 correctness of the position stated by Baldwin, arguing against himself, and then, suddenly, and with impres- siveness in his voice and gesture, he said: "But. your honor, there is just one trouble w'c have — there are just 400 adjudicated cases against us. and not one in (Hu^ favor." He argued for some time further, during which he gave the quoted words frequent itera- tion. At last, Baldwin, interrupting, said: "Well, now, Judge Robinson, if you will just repeat that 400 tiines, we'll be even on the au- thorities." Judge Baldwin was kind in his wit — remark- ably so — but he could resent insolence in fit- ting terms. He was a most amiable man, but nobody was rude to him twice. The Hon. Edward Stanly married his sis- ter. 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 importimed to take office, much to his annoy- ance. In an opposition paper Baldwin drew a graphic picture of Stanly being chased out of three stales 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 resi- dence 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 of forty-nine years. He had been for some time engaged in gath- ering materials for a history of California, but had not progressed far with his manu- script. He was unusually lively at the dinner table the day before his death. That evening in the midst of animated conversation, he suddenly put l)i)lh hands to his cheeks and said: "My jaws pain me — they feel stiff." He had recently undergone a surgical opera- tion and thought he h^id passed it trium- pliantly. But he had the lockjaw. The next (lay he was silent forever. JOHN B. FELTON. Tliis brilliant man was very generallv be- Io\ed. Lively, genial, witty, generous to ex- cess, his conversation "llavored with the es- sence of all good literatures," showing in every word and movement the well-bred gentleman, lie was a most delightful companion, and those who enjoyed his friendship speak of him wilii tile utmost tenderness and affection. Jolin B. I-'eiton was born in Massachusetts in 1827, and died at iiis home in Oakland. Cal., May 2. 1877. Mis father was superintendent of an almshouse in Cambridge, and lived and died in very poor circumstances, leaving three sons, all of whom became men of mark. One 562 History of the Bench and Bar of California. was president of a railroad company in Penn- sylvania. Another was the great scholar, lec- turer 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. He became successively' a Latin tutor, a Greek tutor, professor of Greek, Eliot professor of Greek literature, and presi- dent of the college. Dearly he loved "the bright clime of battle and song," and was said to dwell in "the atmosphere of ancient thought." Some of the most instructive and entertaining pages of the New American Cyclo- pedia are from his pen — the articles on Agas- siz, 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 in- fluence a position as Greek tutor. He had proved himself to be one of the best Greek scholars of his time. While at his law studies John B. Felton was sent by his brother, the professor, to Paris, where he remained a year, studying the civil code, indulging in the amusements of the gay capital, and making himself thoroughly ac- quainted with the French language, which he ever after spoke with great ease and correct- ness. He also obtained a good knowledge of Spanish, having made up his mind to settle in San Francisco, and knowing this tongue would be of service professionally, as it proved to be more than onCe — notably in the great Limantour case. It had been agreed at college between Felton and Mr. E. J. Pringle that they would com- mence 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 Massa- chusetls and South Carolina. Mr. Pringle ar- rived at San Francisco by the Nicaragua route, in December. 1S53. Felton sailed around the Horn, in order that he might thoroughly ac- quaint himself with the structure of seagoing vessels and with nautical terms, hoping to profit by it in admiralty practice. He arrived there 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 thor- oughly equipped as a lawyer. He had latge resources of mind, great breadth of comire- hension, wonderful inventive power as applied to principles, and astonishing quickness .tnd exactness 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 adroitness and subtfety to use technicalities when they suited his pur- pose ; but he preferred broad, catholic views upon all questions of right and wrong between man and man. It would be tedious to go over the list of celebrated causes with which Mr. Felton vas connected. Two of the most important of them were the mortgage-tax case and the locil option case. On the first the court, in a mod«l opinion by Judge McKinstry, took Mr. Feltons view — that to tax a mortgage and also the mortgaged property as though it were net incumbered, is double taxation, and in sonc 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 town- ship. In the Supreme Court, S. W. Sander- son and Lloyd Baldwin appeared for the tem- perance men, and John B. Felton and W. H. Patterson for the other side. None of these survive. 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, de- clares 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, providing 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 prop- erty 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 lim- ited or restricted by the legislature, and then only so far as the exercise of that right inter- History of the Bench and Bar of California. 563 feres 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 dangerous 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 becom- ing dangerous, 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 produce misery, the simple possibility of its being used to excess does not prevent it from being property. The legislature can regulate the use of it, but can- not prohibit the use of it. The local option law prohibited the use of liquors. It was therefore void. Felton confined himself to civil practice. He probably took in larger fees than any other lawyer in the State. For their successful effort to break the Lick deed of trust, on behalf of Lick himself, he and Mr. T. H. Hittell re- ceived $100,000. In the local option case he and Mr. Patterson received the same amount. He was the chosen counsellor of Michael Reese, and many other citizens who had great property interests. He paid little attention to politics, but on one occasion had aspiration for the United States Senate. It was in the campaign which resulted in the election of Newton Booth, as the exponent of a new, inde- pendent, short-lived party. The Republicans had settled upon Felton for Senator, in the event of their success. In that canvass Fel- ton showed great power on the stump. He sometimes spoke for three hours or more with- out notes, and was most happy in thought and •diction. He had a memorable controversy with Governor Booth in that contest. The letters of the rivals make fine reading. Chaste, classic, learned, trenchant — it would be diffi- cult to surpass them in these respects. Felton frequently lectured for charitable causes. He was a great friend of learning, and responded to the calls of schools and col- leges for public addresses. He was regent of the State University from its foundation to his death. In October, 1867, he addressed the graduating class at the commencement exercises of Toland Medical College. He de- livered the oration at the dedication of the San Francisco Mercantile Library. In Octo- ber, 1868, he addressed the Grand Lodge of Masons. These and many other of his ora- tions, besides quite a number of political speeches, were fully reported and have been preserved in immortal type. Tliey are all alive with thought, and are strikingly graceful in expression. He had the most expensive habits in the way of eating the most delicately cooked food that could be procured, and drinking freely of the rarest wines. When dining with friends away from home he always insisted on paying the whole bill — nobody else could spend a cent — and, as a little mark at once of his extrava- gance, good nature and liberality, he always carried a pocketful of fine cigars, that cost, at wholesale rates, not less than twenty-five cents apiece, which he distributed indiscriminately. He was a poor judge of men, and seemed to give little study to human nature. When he was a candidate for the United States Senate he had parlors at Whipple's St. George Hotel, on Clay street, which were open to all men, without distinction of politics, creed, race, or color. Jhc loafers and bummers thought a golden age had arrived. They made him think they were "making his fight," whereas, as the saying is, they did not control their own votes. Felton sent to those rooms, liquors and cigars which cost $7000. A tippling friend met him on the street one day. "They say, Felton, that we drink too much brandy and water." Felron — TTiey ought to be more discriminat- ing. They should say that you drink too much brandy and I drink too much water. Tippler — I guess we do drink too much. Fel- ton. Felton — Who authorized you to use the plural? Is it because you drink enough for two? I'^elton was a most forcible talker, never tlovvery or verbose. He was full of illustra- tion. Mil adept at classic allusion, had a wide reach of information, had explored a vast domain in literature, was severe in logic, straightforward, direct. He was wonderfully (|uick in gr.isping tlie chief points of a case, and ni argunicnl was excited and vehement. home along on Ironicndous waves of enthus- iasm. With his peculiar lemiH'rament, it can hardly be said that he was industrious. Here he contrasted markedly with McAllister. He cer- tainly was not fond of work, but he never 564 History of the Bench and Bar of California. tired of reading. He was fitful in exertion. His clients would sometimes pursue him day after day for weeks at a time, urging him to attend to their business. When he did take hold he made up for lost time, frequently burning the midnight gas in his office. On such occasions he used stimulants freely. His bon mots were marty. He said, prob- ably, more good things than any other lawyer in the State. Seeing an Irish procession on Montgomery street, he called a friend's atten- tion to the flag, and said : "That ought to be kept over the Caller's station in the big board of brokers." "Why?" "Behold the sham rock and liar !" There was a certain lawyer of this bar who was afflicted with cacoethes loquendi. He delighted to talk to the dear people from the platform, and never let pass an opportunity to enlighten them (as far as he could) upon any subject — political, religious, moral, his- toric, or aesthetic. Mr. Felton met him on the street one day, and invited him to join him and a few acquaintances at dinner at a certain restaurant that evening. The "elo- (|ucnt" speaker said he had to address the peo- ple that night at Piatt's Hall, on the question, "What shall we do with our millionaires?" It was a theme of great public interest, and he hoped to see Mr. Felton among his audi- tors. "If you will excuse me, Mr. Felton," he added, "I had rather make a speech than cat the finest dinner ever cooked." "And I, fond as I am of a good dinner, had rather starve to death than listen to you," was the retort. The intensity of Felton's repug- nance can only be appreciated by those who remember how really fond he was of a fine dinner. Judge T. W. Frcclon. Judge Levi Parsons, John B. Felton. and a few other consentane- ous souls, once made up a merry mess of bachelors at Mme. Touchard's private board- ing-house. Felton's winning smile when -he joined his table companions, his exultant mirth and words of wit and wisdom, gave a peculiar charm to his presence, and made the dining hall the place of delightful daily reunion. It was in i860 that Parsons went to Sacra- mento to urge the passage by the legislature of his famous "Bulkhead bill." Felton ac- companied him as his friend and legal adviser. Tlie epicure always had reason to murmur at the capital, but at that time some culinary Solomon had established there, at a conven- ient point, a first-class French restaurant. To this refreshing shelter would Parsons and Fel- ton retreat every evening with their invited guests. Many times did they repair thither, sometimes hopeful, sometimes dejected, but always exhausted. The struggle in the legis- lature was long and stubbornly contestedj the shock of battle was felt throughout the State. Doing effective and silent work each day. Parsons and Felton withdrew from the conflict with a new coterie of friends every night. San Francisco was anathematizing them, but they stood "unmoved, enduring and immovable." Every day there was a great din in the me- tropolis, and every night there was a great dinner in the capital. Judge Freelon met the two warriors in Sacramento in the heat of tlie strife, and they told him that a seat would be reserved for him at their table that night. "But I ought not to partake of your hospital- ity while I am opposed to your scheme," said the Judge. "It does not matter," responded Felton. "You must come tonight, and every night during your stay in town. We never talk 'bulkhead' at the table." Judge Freelon concluded to go. He was so well entertained that he went every night until he left the capital. But he did not hear the word "bulk- head" mentioned at the princely table of the great Bulkheader. This famous bill proposed to grant to the San Francisco Dock and Wharf Company (composed of Dr. H. S. Gates, J. Mora Moss, John Nightingale, Abel Guy, John B. Felton, John Crane, and Levi Parsons — the latter be- ing the great head of the concern) the right to build a bulkhead, or sea wall, with the neces- sary piers, wharves and docks, upon the water line of 1851, with the right to collect dockage, wharfage and tolls; also to construct wharves and piers projecting at right angles from the sea wall, to a length of 600 feet; also to appro- priate and take possession of any franchise, lands or wharves belonging to the city, and also private property on making compensation. The feeling of the people of San Francisco was reflected by the Governor, Hon. John G. Downey, whose veto of this bill made him the popular lion of the time. Governor Dow- ney said, among other things, that from the time when the act should become a law, "all commercial intercourse with San Francisco would be eff"ectua]ly cut off, or be carried on upon such terms as the Dock and Wharf Company might dictate. The products of every branch of domestic industry, as well as every article of foreign trade, all imports and History of the Bench and Bar of California. 505 exports, all vessels approaching the shore, and vehicles approaching the water, might be sub- jected to contribution. Foot passengers only, but not their baggage or effects, would be ex- empt from tribute. The right to construct the front streets, or to build a bulkhead, with the necessary piers, wharves and docks, and to fix and collect tolls, had been granted to the city and county of San Francisco, not in the same words adopted in this bill, yet in terms not less comprehensive and effectual. This bill attempts to divest and impair rights which are to be regarded as contracts. It empowers the company to take private property, not for any public use, but to facilitate a private en- terprise. And it is plainly repugnant to the Federal Constitution, and the constitution of this State." Felton's conversation was fresh, original and sparkling. His wit was abundant, and was set off by the most spontaneous, exuberant and contagious 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 enjoy- ment of their own sayings. Their laughter seemed to follow naturally, and it was as re- freshing 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 Shakes- peare 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 IJow- man's recapitulation. In the discussion that ensued, Felton astonished Bowman l)y his thorough Shakespearean scholarship. He spoke with enthusiasm, and Bowman wondered if his friend had not made Sliakcspearc the special study of his life. The profession, and the people, heard witii genuine sorrow of the de.alh (if this unselfish spirit, this master of the law. The bar lue- nioria], addressed In the courts was from the lirolitie pen of Josepli W. W'inaiis. aiid may fitly conclude this notice : "To the profession of his choice he conse- crated the supremest lal)ors of his life. Willi 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 direction and govern- ment of man in all the relations of society and state. Imbued with such a conception of its dignity and objects, he was singularly success- ful, through the soundness of his reasoning, the persuasion of his address, and the resist- less power of his logic, in eliminating and bringing into practical enforcement those great principles of truth and right which con- stitute the theory of jurisprudence. It was the aim of his mental effort to convince the understanding, rather than inflame the pas- sions. 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 numificence he was prodi- gal ; in his hospitality a prince. "His life, thougli 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 philanthropist, he was in each capacity alike conspicuous; and severely will be felt the absence of that stim- ulating hand." JOSEPH P. HOGE. We shall call him Colonel Hoge, because as "Colonel" he was universally known ; but no title of any kind ever belonged to him, except that of Judge, which he acquired long after he was three score and ten. Joseph P. Hoge was a native of Ohio. He received what is called a classical education, graduating from Jefferson college. Pennsylva- nia. Returning to Ohio, he was there ad- mitted to the bar. When he was about thirty years old, he removed to the Prairie State, settling at Cialen.a and entering on his profes- ^^iou. lie soon becime popular and moder- ately prosperous. .\n unborn hn-e of jmlitics was his, which ever asserted itself. He had not been long in Galena when the Democracy snu hiui lo the Twenty-eighth Congress. In the c.imp.iign which preceded his election, ho made many brilliant slump speeches, and ty the people. A member of the judiciary com- mittee, 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 Bar- bara county. He was, at the time, the Judge of the District Court of the First Judicial Dis- trict. The old constitution provided that Dis- trict judges, while such, were ineligible to hold any other office. The question was, "Was the positon of member of a constitutional con- vention an office?" Judge Fawcett's seat was contested, and the matter was referred to the judiciary committee. It provoked warm dis- cussion in the committee and in the conven- tion. The majority reported in favor of aw-ard- ing the seat to Judge Fawcett, and the report was adopted. ]\Ir. Shafter wrote a minority report, which was signed by him and two others. In this paper he presented a masterly argument in support of his view — that if Judge Fawcett were admitted he would be holding two offices at the same time. Judge Fawcett claimed that this was in no sense an ofifice 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 : tliat if the people of one generation had a right tu dictate to the peo- ple 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 dis- sent 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 favorable considera- tion. (This opiinon. liy Judge Sanderson, es- tablished 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 de- cisions. The first leading case in which Mr. Shafter was engaged in California was that before al- luded to, upon which he went to work on the morning of his arrival — the case of Birrell vs. Schie, which went to the Supreme Court and is reported in the Ninth California, page 104. The principle was here established that the debt can be followed through several suc- cessive mortgages, notwithstanding the dis- charge of all those intermediate, and the tak- ing of new obligations surrendering and can- celing 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 i:i this State, the necessary incidents of re- demption from foreclosure sales, the effect of protest upon payment were clearly fixed. The exarnination of authorities and the brief upon the prevailing side were made and prepared by Mr. Shafter, jointly with his brother and Judge Heydenfeldt. ■■ In Seligman vs. Kalk- man (8 Cal. 207), which was conducted by Mr. Shafter through all the courts, it was decided that no title passed in case of a pur- chase of goods by an insolvent who knew of his own insolvency at the time. The doc- trine 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 oninion in that case was written by Jus- lice Field. He was prominent in many other cases involving principles of pleading and- con- struction 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 principle 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 to the possession of lands, the title to which was in the government, assessed and taxed like other property. He conducted this case, and pro- cured a decision requiring the taxation of these lands against the claimants, notwithstanding that the title was in the government. History of the Bench and Bar of Calif oniia. 0/ / Mr. Sliafter always manifested a lively in- terest in agricultural pursuits. He was for a time President of the State Agricultural So- ciety, and in September. 1878, delivered a long and thoughtful address before that body. He was an owner and breeder on a large scale of blooded horses, cattle and other stock. Sim- ple in his tastes, plain in liis speech and dress, rep'ular in his habits, he was a toiler all his life. He believed in work, and had repeatedly offered prizes to young people to encourage them in their struggle, and to impress upon tlieir minds a sense of the beauty and dignity of labor. One of his cleverest and most char- acteristic acts in this line was the plate pre- sented 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 con- testants from all parts of the State. Mr. Shafter married Miss Julia Hubbard at Montpelier, Vermont. October 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 mar- riage. The wide and rich domain which Mr. Shafter owned in Marin county was acquired by him in 1856. It comprised 25,000 acres. Judge Shafter was a Judge of the Superior Court of San Francisco. 1889-90, being ap- pointed in July, 1889. in place of Hon. J. F. Sullivan, resigned. In that capacity he ren- dered the final judgment in the Sharon case. At the general election in November. 1890. he ran on the Republican ticket for Superior Judge, but was defeated. He died on the 29th of August. 1892. at San Francisco, aged 76 years. RUFUS A. LOCKWOOD. The true name of Rufus A. Lock wood was Jonathan A. Jessup. Lockwood was his mother's family name. He was perhaps the strangest character in all of our history. He was born in Stamford, Connecticut, in 181 1. At eighteen he entered Yale College. For about one year he was diligent in his studies and advanced r.-ipidly. Suddenly — a step in keeping with liis .nfler life — he left ci)llege and entered as a sailor on a Ihiited Stales man-of-war. The vessel made a short voyage to the Bahamas, and returned to New York Citv. There he deserted and there he first took up the n.inu' of Lockwood. On the re- turn voyage he had determined to desert, if possible, because one of liis messmates had I'een lied up and tloggcd. Working his way to Buffalo, on the Erie Canal, he proceeded by schooner to Chicago. I his was in 1830, and Lockwood was nine- teen. He had no money and knew nobody. Meeting a farmer from Tippecanoe county, Indiana, he was engaged to teach school at Romney, a hamlet in that county. He taught at Romney and Rob Roy. an adjacent vil- lage, alternately, for about one year, and de- voted his time out of school to the study of medicine. He had some slight trouble with his patrons at Rob Roy. and without notice 10 any one. started one bitter cold day over an eight-mile stretch of snow for Romney. where he arrived with hands and feet frozen. When he got well he resumed teaching at Romney. and joined a debating society, in which his argumentative powers first excited remark. Now, also, he commenced to read law. It is said that he almost literally com- mitted to memory the text of Blackstone. He removed to Crawfordsville. opened a school and continued his law studies. Here he had another quarrel with the principal of a rival school. It didn't lead to much, being a news- paper controversy. He was admitted to the l)ar by the Circuit Court of Crawfordsville. and, though penniless, got married and went to Thorntown, Boone county, to practice. He was soon sued by his landlord, and pleaded as a setoff an unpaid tuition bill. He was his own lawyer and lost his case. He wanted to appeal, but could not give a bond. He and his bride soon found themselves without a bed, that useful article of their scanty house- hold goods having been sold by the consta- ble under execution issued on his landlord's judgment. "I never knew how my wife lived at Thorntown." he said many years after- ward. "I know how 1 lived on potatoes roasted in the ashes." He lost his second case. also, but having for a client somebody else this time, an appeal bond was filed and Lockwood made his first appearance in the Supreme Court of Indiana. Being first examiiuil ,ind admitted to practice in that tril)unal. he .iriiued his cause in a style so masterly as to win the encomiums of the bench. (See Polk el al. vs. Slocum. 3 I'.l.ickt'ord. 4JI.) F.tii for several years he struggled on. with liille business. His home, too. if such il could be called, was unhappy. His only pleasure was in study. In 1S36, Albert S. White, a prominent law- yer of Lafayette. Indiana, offered him a part- 578 History of the Bench and Bar of California. nership. which he accepted. Jn that year he made a remarkable and successful defense of T. W. II. Frank, a young editor who had killed Jcjhn Woods, a well-known merchant. 'Ihe slayer and the deceased belonged to op- posing political parties. They were strong partisans, and party lines were sharply drawn in the community. The difficulty grew out of a wager won by Frank. It seemed impos- sible to get a jury that would agree. Lock- wood made an argument of nine hours, which has been pronounced "the best jury speech ever made on this continent — or any other." He secured an acquittal, and won great pop- ularity. He was now only twenty-six years old. and his partner being elected to con- gress, he for the first time since he ran away from college, took a long breath in the con- solation of success. In 1842. a business depression, such as every now and then visits every community, came upon his section. He had invested in lands, which now would not sell for enough to pay his debts. He scraped together what money he could, gave all to his creditors, except a few hundred dollars, placed his son in a .school in Vincennes. and struck out for "parts un- known." not even letting his family know his purpose. He went to the City of Mexico, where he was a stranger in a strange land. He studied the civil law and the Spanish lan- guage, was taken sick, could get nothing to do. and after a stay of a few months, went to Vera Cruz, which he reached with $2 in his pocket. He risked this little balance at monte. and won $50, with which he went to New Orleans, thence to Natchitoches. There he resumed his true name of Jessup and con- tinued the study of the civil law, which was in vogue in that state, and the Louisiana code. After a year he went to New Orleans and ap- plied for admission to practice in the higher courts of Louisiana. He passed the examina- tion, but just as the oath was about to be ad- ministered to him he saw in the courtroom the man who had sued him and caused his bed to be sold under execution. Before he left In- dana he had availed himself of several oppor- tunities to wreak his vengeance upon this man, and now. fearing that his old enemy would expose his change of name, he left the room without taking the attorney's oath. A few days later a prominent Indiana lawyer met him on the street in New Orleans, very in- elegantly clad. He asked a loan of $20 to redeem his trunk. The Indianan proffered $10 — all he had on hand. Lockwood declined it, saying it was of no consequence. The same day he enlisted as a United States soldier, re- ceived $20 bounty, and was sent into Arkan- sas. Edward A. Hannegan, then United States senator from Indiana, who had formerly known Lockwood, heard of the latter's latest freak, and sent him an order of discharge, signed by President Tyler. He also remitted 1(1 liini $100, and urged him to go home to his family. Lockwood did .so. and resumed law practice at Lafayette. His lands had been making money for him in his long absence by largely appreciating in value, and he soon paid ofif the balance of debt he had left be- hind three years before. In 1849 Lockwood lost an important will contest. He thoroughly believed that the al- leged will should not be admitted to probate, and. moreover, being a strong hater, and one of tiie principal legatees named in the proposed document, having provoked his wratli some time before, he went into the trial with a determination unparalleled. He addressed the jury during the whole session of the court for three days. The verdict was against him, and when he heard it, he struck liis fist violently on the table, declared that he would never try another case in that court, and left the room in great excitement. Then lie turned his e\'es toward California. A friend. Air. E. L. Beard, was also look- ing this way. The two came — Beard through Mexico ; Lockwood around the Horn. It would seem that when Lockwood first thought of emigrating to California the disgust which he felt over his defeat, just mentioned, made him despise his profession; for, instead of l)acking his law l)ooks, he determined to bring a large stock of iicjuor in small I)ottlcs and retail it to miners. He abandoned this no- tion, however. His strange record has not this blemish. Beard settled at a fine spot, the Mission San Jose, in the southern end of .\lanieda county. He had established a comfortable home, and Lockwood found him there. Lockwood looked as if he needed hospitable shelter. He was dirty, tired, hungry, wet and sick. He had got lost on the Alameda nuid flats, and had tramped all night long. Lockwood went to San Francisco. On the ocean voyage he had studied medicine, and tried to forget the law. He did not, however, ask for a diploma. He treated himself at his friend Beard's house, the day he arrived there. History of the Bench and Bar of California. 579 He uied himself, and found relief, after a regular physician had told him that if he did so. in his then condition, it would be certain death. In San Francisco he went into the law of- fice of the eccentric Horace Hawes, and asked for a clerkship. He was thirty-nine years old. a great genius of the law, and he wanted a clerkship ! He got it. Hawes examined him. but not very exhaustively — he soon made a discovery. It was agreed that Lockwood should perform the double office of clerk and janitor — time, six months; terms, ten dollars per day. to be paid daily. Those were flush times, be it remembered. Here was an as- sociation to make man wonder, if not weep. Eccentricity was the only peculiarity common to both. Hawes was rich ; Lockwood was in rags. Hawes was supremely thoughtful of self; Lockwood supremely negligent. Hawes was an iceberg; Lockwood a pillar of fire. Lockwood gambled ofif his daily wages, but faithfully performed his duties, and when six months were passed, he was offered a partnership. He refused promptly, and, in language not heard before by his employer, he expressed his disgust with his experience in that office. Bv this time Lockwood had come to be well known to the bar, and concluded to re-enter the ranks. He soon revealed him- self. In the summer of 1851 he formed a part- nership with Frank Tilford and Edmund Ran- dolph. Randolph was from Virginia, by way of Louisiana. Tilford came direct from Ken- tucky. They were able lawyers and knightly men. These three men made as powerful an alli- ance as was ever effected at that bar. It was the leading firm for a time, but its time was short. While it held together, it brought the most important suit instituted in the State for many year.s — Metcalf vs. Argenti and oth- ers. The defendants were members of the Vigilance Committee of 1851. and, deputed by that body, had searched the premises of the plaintiff. The latter asked $50,000 dam- ages. The legality and propriety of the organ- ization and acts of the committee were in- volved, and as the vast majority of the citizens either belonged to or sympathized with the committee, the trial of this cause was watched with universal interest. The first trial of the case was commenced on Saturday, August 15, 1851. On Tuesday the trial was interrupted and suspended by the tumult consequent on the rescue of Whit- taker and ]\IcKenzie by the Governor and sheriff from the Vigilance Committee, which afterwards retook the men and hanged them. The evidence was closed on Thursday even- ing, and on Friday the jury was addressed by Mr. Randolph for the plaintiff, and Isaac E. Holmes for the defendants. On Saturday morning, August 2^, Lockwood closed the ar- gument for the plaintiff in a speech of four hours. The jury disagreed, as they also did upon a second trial. At the close of this short partnership with Tilford and Randolph, which he abruptly ter- minated, Lockwood took one of the strangest steps of his strange life. Just as he had put himself at the head of the profession here, and his fame had spread over the State, he walked out of the law office and went to the water front, where for several weeks he worked as a longshoreman. A client who needed his professional service persuaded him to quit this new emploj^ment, Lockwood in- sisting that his fee should be in the shape of daily wages. Shortly thereafter he became the regular counsel for the great banking and real estate firm of Palmer, Cook & Co., and obtained a large practice. His receipts for a j'ear or more were very large, but they went to the gambling table. It is said, however, that about this time he sent ten thousand dol- lars to Senator Hannegan of Indiana, in re- turn for the one hundred dollars that gen- tieinan presented him a few years before, when he had been discharged from the army. In the summer of 1853 Lockwood took a new departure — for Australia. He knew no one there, and did not take a dollar with him. He remained about two years. He could not practice his profession because of a law requiring seven years' residence. He acted as a lawyer's clerk, a merchant's bookkeeper, and a herder of. sheep ! From the first named occupation he was discharged for not copying into a Ijrief a paragraph which he said was not law. On his return here in 1855 he said his trip to .\ustralia was the sanest act of his life; tliat he wanted to do some great penance for his sins and follies and to put a great gulf Iietwecn him and the past. Indeed, a change for the better was noticeable in him. He stopped the habit of gambling, and was calmer in thought and manner. His high sense of professional honor was strikingly illustrated by his refusal to take a large fee to defend tile famous "Peter Smith Titles." owing to 580 History of the Bench and Bar of California. the fact that he had once expressed the opin- io . that these titles were invahd. In the fall of 1855 Lockwood went to Wash- inton, and in December of that year he made a long argument in the United States Su- preme Court in the case of Field vs. Sea- bury. The facts for this sketch are found in a most interesting and finely written notice of Lockwood, contributed by Hon. Newton Booth to the Overland Monthly in 1870, and copied by the Albany (N. Y.) Lazv Journal. Therein is presented this picture of Lockwood's per- sonal appearance in 1855 : "Height, above medium; figure, large and ungainly ; movements, awkward ; complexion, sallow and tobacco-smoked ; eyes, dark and deep, with dilating pupils edged with yellow — cat eyes in the dark; hair, dark brown, sprin- kled with gray ; nead. feet and hands, large — left hand web-fingered; features not irregu- lar, but without play or mobility, with a fixed expression of weariness ; dress, careless, al- most slovenly ; age, fifty years, bearing the bur- den of fourscore. This view of Lockwood in the argument of the case of Field vs. Seabury, in the United States Supreme Court, is from the article re- ferred to, which was written about two years before the author became Governor of Califor- nia. "More tlian the usual number of spectators were present, and there was something more than curiosity to hear this lawyer, who had often been heard of, but never before heard in that court. The consciousness of this curiosity and expectation embarrassed him in the open- ing of his speech, but his mind fairly in mo- tion soon worked itself free and his phleg- matic temperament glowed to its core with flameless heat. For two hours he held the undivided attention of the court in an argu- ment that was pure law. He had that pre- cision of statement, skill and nicety in the handling of legal terms, wliicli modulate the very tones of the voice, and by which lawyers instinctively measure a lawyer — that readiness which reveals intellectual training that has become a second nature — that self-contained confidence that is based on the broadest prep- aration — that logical arrangement which gives the assurance that back of every proposition is a solid column to support it if attacked — and that strength and symmetry of expression which carry the conviction that behind utter- ance there is a fullness of knowledge that floods every sentence with meaning, and an unconscious reserve of power which gives to every word a vital force." On the steamship Central America, in the fall of 1857, his troubled life was ended. He was going from San Francisco to New York. A friend in San Francisco who knew his dis- order and who believed the proposed trip was suggested by eccentricity, rather than by the demands of business or health, urged him not to go. "I will stay if you insist," he answered, "but I feel that I shall go mad if I do." When the tempest was toying with the vessel, and the passengers were at the pumps, he. after doing duty some time, stopped and went up to the cabin. An officer ordered him back. He replied : "Sir, I will work no more." He died as he had lived, an enigma. Enter- ing his stateroom he closed the door upon the scene, shut his eyes upon the light of life, and went down with the wreck. CREED HAYMOND. Mr. Haymond was born in Beverly, Ran- dolph county, Virginia (now West Virginia), April 22, 1836. He came to California in 1852. The Haymonds are extremely few in num- ber. Though one ancestor is reported to have had thirty-one children, twenty-eight of whom lived to be married, they were on the mater- nal side of the family, and did not perpetuate the name. Mr. Haymond's famil}- on both sides had re- sided in Virginia since long before the Revo- lution, and many members of it had been prominent in her political afi^airs. His father, Hon. W. C. Haymond, was distinguished at the bar. and tlirougli him the son was inspired by a love for the law that was unusually in- tense, receiving his first impressions imder very peculiar circumstances. The courts of Virginia were in those days itinerant — that is to say, the Circuit Judge, accompanied by the local bar, rode from town to town to hold court. Mr. Haymond's father rode circuit with the rest, always taking with him Creed, after the latter had reached a suitable age. The boy rode astride of the saddle in front. This was before young Haymond had reached the age of sixteen. His early life was, there- fore, spent in an 'atmosphere very unlike that which surrounds the ordinary boy. I'he writer often heard Mr. Haymond speak of those old days, of the uncommon relations History of the Bench and Bar of California. 581 existing between his father and himself, the rare lessons he received during moments of leisure, when, seated upon mother earth, they took their lunch at noon ; of the long rides between broad plantations, down dusty roads, across babbling brooks, sometimes alone with his father, sometimes forming a part of a gay cavalcade, embracing the brains and wit of all the country-side. Often, on a rough-hewn bench in the primi- tive Virginia court-room, throughout the long summer day and away into the twilight, when the flickering candle was brought in to empha- size the darkness, the lad sat, listening in boy- ish wonder to the intellectual contests of the great men of his county, with an interest that grew with his own growth. Bare-foot village lads, drawn by curiosity or weary with play, peeping into the court-room, and emboldened by the sight of one as young as they, would sometimes enter and sit beside the slender, pale-faced boy, and, staring at him, wonder who and what he was ; but in a little while — wearied by the nice, sharp quillets of the law — they would hurry to resume their sports, leav- ing the strange boy to himself again. This experience left its mark. It made the young student manly, self-reliant, and inde- pendent; gave to him the breadth of view that characterized him as a man ; gave to his physi- cal nature bravery, to his mental nature bold- ness of thought. At the age of seventeen, of his own choice, he left his Virginia home with a party of friends, boys like himself, no one of them being over twenty, and crossed the plains to try his fortune in California. They traveled fast for those days, carrying water in kegs and looking only for grass for their animals ; but it seemed like a strange dream to go through almost the same region long after- wards, at more than thirty times their best speed then. Soon after arriving in this State, in 1852, being possessed of some means, he engaged in mining, packing, merchandising and ditching, on a large scale, in the northern part of Sierra county. For a year and a half he carried Wells. Fargo & Co.'s mails. Mr. T. H. Merry, in his story of "Sandy's Vindication," intro- duced Mr. Raymond under the name of "Creath Hatland," as a mail rider and conduc- tor of the saddle train, "who would fight at the drop of the hat, so that no one ever dared to stop the train or roh the express while he was in charge." "The finest i)ody of men ever gathered to- gether in the world's history— men for the most part of wealth, social standing, educa- tion and great ability," was Mr. Raymond's opinion of his old associates who came first to the mining regions of California. Time only intensified his admiration for them, and while appreciating the genius of Bret Rarte, he al- ways regretted that his stories of California life were so out of drawing, and said that the unfavorable impression of Californians which they created abroad would not soon be effaced. He continued in business until 1859, when he entered into the study and practice of the law with Ron. James A. Johnson, afterwards Lieutenant Governor of this State, and Judge Alexander W. Baldwin, afterwards United States District Judge of Nevada. In the legal profession his upward flight was remarkable, carrying him to the highest point then achiev- able within the first year of his new life. The position thus early gained he never lost. Ris reputation widened as time passed by, until it became more than national. His later argu- ments, especially, dealing as most of them did with the broadest questions of constitutional law, engaged the study of lawyers and states- men in every part of the world. Mr. Raymond was for a long time Colonel of the First Artillery regiment. National Guard of California. He was Captain of the Sierra Greys, a Sierra county militia company, and took his command into service in the spring of i860, under Colonel Jack Rays, against the Indians of Nevada, after the Pyra- mid Lake massacre. In this campaign against the Indians, Captain Raymond was lightly wounded. Two severe battles were fought; one on the Truckee, and the other on the Car- son, below Wadsworth. This broke the power of Chief W'inncnnicca. Mr. Raymond was appointed tide-land com- missioner by Governor Raight, to settle ques- tions as to the tide lands of San Francisco, but did not serve, and L. L. Bullock was ap- pointed in his stead. Re served two sessions in the State senate, being elected in 1875 from Sacramento comity. In that body he achieved (lislinctinu ;is ;i speaker and worker. Re de- clined a riMKiniination. .ilti'i- serving four years. In 1880 Mr. Raymond was sent to the Re- publican National Convention, which nomi natcd Garfield. In 1881 began a new phase of Mr. Ray- mond's professional career. In that year the Central Pacific Railroad Company tendered 582 History of the Bench and Bar of California. liiin tlic position of associate solicitor of that company. The name of Haj'mond will always be linked to that of the Leland Stanford. Jr., University. He, with Governor Stanford, drew the act and formulated the provisions under which this university was to be founded and perpetuated, and to him was assigned the preparation of the Articles of Endowment signed by Leland Stan- ford and his wife, whereby their immense for- tune was bequeathed to the cause of educa- tion. Upon his promotion to the position of gen- eral solicitor of the Central Pacific Railroad. he found more than five hundred cases pend- ing against that company — involving in the aggregate millions of dollars. Much preju- dice existed against the corporation among the people of the State. In two years he re- duced the number of cases to thirty, and wrought a great change in public sentiment toward the corporation. All claims for dam- ages were thoroughly tried before Mr. Hay- mond. and impartially judged by him, almost before a claimant was permitted to sue. He married in 1872 Miss Alice Crawford, an accomplished and beautiful young lady, a na- tive of the town of Auburn, Placer county, California, who during her life shared his vic- tories and achievements. He once said to a friend that he could distinctly remember the ringing of bells and the jollification that fol- lowed the birth of his destined wife, one of the first children born in Auburn, for the birth of a baby was an important event in those days and in that region. She died at San Fran- cisco in November, 1887, leaving him witliout issue. Mr. Haymond died in 1893. J.\.\IES W. COFFROTH. "Tuolumne's Favorite Son" was born in Franklin county, Pennsylvania, in the year 1829. His great-grandfather emigrated to that state from Germany, where the name was Kaufrath. James W. came honestly by his predilection for politics, his father having dabbled in the pool all his life. The old man found it unprofitable, although he won the shrievalty of his county for one term. He was poor, and his sons had to commence battling with adversity at early ages. James, with little learning, went to Philadelphia to make himself a printer. He learned the printer's trade and followed it for several years, de- voting his spare hours to profitable reading. He made many contributions, prose and verse, to the press, the first appearing in his seven- teenth year. He also took the platform early. He set type all day, and at night he was in some lodge or at some political meeting. He did most of the talking — both because he liked it and because his style was so happy that he could not get out of it. His presence was sunshine, and his speech full of charm. In 1846 he became associate editor of the Spirit of the Times. In February, 1850, he purchased a half interest in that journal, and became chief editor. In the same year James W. Cofifroth & Co. issued The Sunday Paper, the second Sunday journal established in Phila- delphia. In the first issue Mr. Cofifroth called the attention of religious people to the fact tliat the only Sunda}' work done on a Sunday paper is the simple distribution of the paper; whereas, on a Monday paper all the work but tlie distribution is done on Sunday. True to his German extraction, the young man was full of sentiment. If there is "Noth- ing half so sweet in life as love's young dream." he must have had many moments of supreme happiness in Philadelphia. While his poetical efifusions embraced such themes as death, and heaven, and hope, they were mostly erotic. He worshiped the beautiful, especially as revealed in woman. One critic observed that young Cofifroth was "the ugliest man and the best judge of beauty in Philadelphia." The antithesis was not wholly justified. CofTroth, while not hand- some, was far from l)eing ugly. His genial spirit constantly lit up his face, and, aided by his winning speech and bearing, attracted men and women alike. Late in 1850 Mr. Cofifroth sold out his in- terest in his paper and struck out westward. He made a short stay in Indiana, and an- other in Texas. In Indiana he had a brother, John Randolph Cofifroth, a successful lawyer and popular speaker, and who attained later to the Supreme bench of that state. Cofifroth arrived in California in 1851. and located in .Sonora. Tuolumne county. He came with a view to work in the mines, and settled at a most inviting spot in the midst of stirring scenes. He was but twenty-two years old. In June, 1851, he is found in the editorial room of the Sonora Herald, having for a few weeks previous set type on that paper. While connected with the Herald Mr. Cof- froth resumed writing verses, which appeared from time to time in that paper. He delivered History of the Bench and Bar of California. 583 the Fourth of July oration in Sonora, in 1851. It was a happy effort, and the miners gathered in a large mass from the country round about. He amused, entertained and thrilled thcni, and that hour he became what he was ever after- wards called — "Tuolumne's Favorite Son." Just about that time a certain ditch mo- nopoly, which supplied all the miners of that region with water, had become so unpopular, on account of extortionate charges, that the victims of its rapacity were compelled to or- ganize for self-protection. Coffroth joined the movement and fired it with his own en- thusiasm. It was resolved to make an oppo- sition ditch. Nearl}^ everybody subscribed, and scrip was issued to the subscribers, to be called in and paid for out of the receipts from the ditch. It took several thousand men a month or so to complete the work. Coffroth's was the animating, all-pervading spirit. He worked himself, shovel in hand, but did more effective service by his eloquent speeches, his stories and witticisms, which kept the army of workmen in good humor until their task was done. When the Democratic state convention met in the fall of 1851, Mr. Coffroth was a dele- gate froin Tuolumne county, the youngest member of the body. He looked as mature as some delegates at thirty, being six feet high, with broad shoulders and massive head and frame. The ticket nominated by that con- vention was elected, and at the same time Mr. Coffroth was chosen by his county to repre- sent it in the assembly. Coffroth was State senator from Tuolumne at the sessions of 1853, 1854, 1856, and 1857. His last election was by the Native Ameri- can or Knownothing party. He was leader in the councils of that party. The Know- nothing State convention met in Sacramento in 1855 to nominate State officers. It was a splendid body of men. Coffroth was the most conspicuous and trusted leader. He was only twenty-six years old, but he had made him- self prominent in the senate. He was known throughout the State, and he was the idol of his own county. The nomination for Governor was tendered him with one spontaneous ac- claim. He declined. He felt certain that the new party would sweep the State, as it did. He was certain that it would have the legisla- ture, as it did. He was confident that he would be sent to the United States senate, not at that session, because he was not old enough, but later, and he reasoned that he would have more strength in his fight for the senate if he declined the Governorship. He lost both places. Had he accepted the nomination tendered him his name would be enrolled on the list of our Chief Magistrates, for Hon. J. Neely John- son, who was nominated, was elected by 5,000 majority. The end of this interesting man came sud- denly, and too soon, but it is pleasant to record that it was free from pain. At a quarter to nine o'clock, on the morning of October 9, 1872, at his residence in Sacramento, while seated on a sofa, at a front window, await- ing a street car to talvc him to his office, he fell to the floor and expired instantly. The capital city mourned as it had rarely done, and all the people bowed around his grave. At the bar meeting, besides the speech of his fellow-partisan. General Jo Hamilton, his old political foes, but steadfast friends, Judge T. B. McFarland, Judge Samuel Cross and Hon. D. W. Welty, spoke with deep feeling. Gen- eral Hamilton declared : "If I were in a position where I needed the cool, clear, care- ful judgment of one who would protect my honor and keep me to duty ; if I wanted a man to stand by me in a strong, stern strug- gle that called for manhood and intellect, and true friendship, to James W. Coffroth would I have gone, above all men." "He was the most pleasant man I ever met," said Judge McFarland; "let us resolve that his memory shall not perish." "He never stopped to speculate out of his misfortunes," said Judge Cross; "he scorned to do it. In many instances I knew he could have done it, but he never did. I knew his personal worth, and for this more than once I voted for him against my party candidate." "He was a sound lawyer, a close reasoner, a good man," said Mr. Welty. "I have ob- served his character and career; the whole Pacific coast knew him : he was one of the strongest men of our nation." Expressions of tender eloquence like these fell from the lips of all classes of men, from Portland to San Diego. Known so well and widely, he was bitterly lamented by a great penpK'. lOHN R. TARBOE. John Rodolpli Jarhoe was born at Ellicott's Mills, in Anne Arundel county, Maryland, on the i6th day of February, 1836, and died in the city of San Francisco, California, on the 584 History of the Bencli and Bar of California. 4th day of July. 1893. aged 57 years. 4 months and 18 days. He was the eldest of a family consisting of four sons and four daughters. As the eldest son and in accordance with the time-honored family tradition, he inherited his father's and forefather's Christian name of John Rodolph, likewise inheriting an exceed- ingly delicate, if not fragile physique to the extent that in his boyhood years he was fre- quently, and at times for protracted periods confined to his room, often bedridden : this in- firmity, however, in no wise was permitted by him to serve as a damper to his love of study, or an impediment to the acquisition of knowledge, the desire for which had become manifest in him to an unusual degree at a very early age ; during these critical years of his earlier life, his studies were under the super- vision of. and at times conducted by his father, who at this time and for many years prior and subsequent was the principal of one of the leading educational institutions for young ladies in the United States, known as the Baltimore Collegiate Institute, located in Bal- timore. Having mastered the branches of studies requisite therefor, Jarboe at an early age was n^airiculated a student of Yale College, from which institution of learning he graduated sixth in a numerous class early in the year 1855. His record in mathematics and the study of cognate subjects while attending Yale was a brilliant one. attracting the attention and commanding the respect of the faculty of that instittition to such an extent that upon his graduation, two positions were offered him. one that of tutor in mathematics with the view of his subsequently becoming professor of that branch of science in the very university where he bad so distinguished himself, and the other as a member of the mathematical corps of Dr. Kane's farnous North Pole expedition, at that time making preparations for its departure to the Arctic regions ; tempting and fascinat- ing as both of these offers were to a mind apparently so felicitously endowed as his was for either, yet after mature deliberation and for potent reasons, both w-ere declined, and after receiving his diploma from his Alma Mater, and spending a few months at his home in Baltimore, early in the year 1856 Jarboe turned his steps w'here his thoughts had al- ready preceded him, to the then young State of California, the psychical magnet which had already attracted, and was still attracting so many of the young, the enterprising and the ambitious to its shores to be colaborers and architects in the building up of the future em- pire on the Pacific Slope, from whose hith- erto unexplored mountain fastnesses there had then but recently gushed forth a generous vi- talizing golden stream, which had already (lowed into and stimulated every artery of the world's commerce, fertilizing every avenue of enterprise, developed energies and promoted activities fraught with influences affecting the destinies of the race, and causing the great heart of human industries to throb with a pulsation hitherto unknown. Young Jarboe's object in coming to Cali- fornia was the establishment of an educa- tional institute somewhere in the State on lines similar to the one in Baltimore, of which his father was principal, and in which capacity the latter's life's services had been devoted ; in the carrying out of this idea, he was not only encouraged and sustained by the judgment of his father, but was also financially backed by his purse, the latter being at all times an enthusiast in all matters tending to promote educational advancement. Shortly after his arrival in California, in 1856, young Jarboe settled in Alameda county, where he was em- ploj'ed as a teacher in one of the private schools. After having gone so far as to se- lect and purchase a tract of land in that county upon which to found his proposed institute, he, upon more mature judgment, became con- vinced that owing to the conditions then ex- isting and the paucity of population, the build- ing and establishment of such an institute upon the lines projected were premature, hence the undertaking was reluctantly abandoned, and while still teaching school, and with the same restless assiduity and tireless applica- tion which had hitherto marked his career in the prosecution of his previous studies, Jar- boe applied himself to the study of the law, with a view of becoming a member of the legal profession, and in the month of December. 1858. he went to Sacramento, the capital of the State, and the only place where the Su- preme Court was convened, with the view of "passing his examination" before that au- gust tribunal, preliminary and necessary be- fore being enrolled as a member of the pro- fession. In those days the usual, if not the only, course pursued in cases of applicants for admission, who had not the certificate of the Supreme Court of some sister state, was upon motion made and an examination had, as to the applicant's qualifications ; such exam- inations being made by a committee of three members of the bar appointed by the court at the time of the making of the motion. At >*^5?*a».-A.,;) 5^ John R. Jarboe History of the Bench and Bar of California. 587 this time the Sunreme Court of the State con- sisted of David S. Terry, chief justice, with Stephen J. Field and Jo. G. Baldwin, asso- ciate justices. Upon the making of the mo- tion for young Jarboe's admission in open court, the chief justice appointed three of the most distinguished leaders of the bar of the State, and who were then present in court to conduct the examination, consisting of Jo- seph P. Hoge, ex-Supreme Judge Solomon Heydenfeldt, and a third equally prominent, whose name the writer cannot now recall ; whereupon two of the committee withdrew with the applicant into an office adjoining the court room, and the examination, as was customarj', was at once commenced. The two members of the committee had asked onlj some four or five questions on the subject of the common law of England, and the law of tenure and entailment under the feudal S3's- teni, when the absent member of the commit- tee entered the room, and, after listening to some one or two more of the questions and answers, interrupted the proceedings by say- ing, "What's the use of wasting your time by asking such questions and showing your ignorance on subjects that the applicant is fresher, on and better posted than both of you? Let me ask him some pertinent questions as to his qualifications." Then turning to the ap- plicant, "Mr. Jarboe," he asked, "did you ever drink a brandy punch?" "Yes, sir," replied Jarboe. "Do you know how to make one ?" asked the examiner. "I do not," replied Jar- boe, "but I have discovered that they make a very fine one at the 'Sazerac' (a saloon across the street), and would be pleased if the learned committee would join me in test- ing one." Which invitation was at once ac- cepted and acted upon. After the test, the committee having found the applicant's judg- ment to be good, and the reputation of the "Sazerac" deserved, went direct to the court, still in session, and announced to that tribunal "That, after having subjected Mr. Jarboe to a most thorough examination, and being en- tirely satisfied as to his qualifications, your committee unanimously recommend that the motion be granted, and the ai)plicant be per- mitted to practice at the bar," which was done, and thus (borrowing the language of the cer- tificate issued under the seal of the court), "Be it remembered: That John R. Jarboe was on motion first made to the court in this behalf, and after examination, had duly ad- mitted and licensed as an attorney and coun- sellor of the Supreme Court of the State of California on the I4tli day of December, in the year of our Lord One thousand and eight hundred and fifty-eight, and of the Independ- ence of the United States of America the eighty-second." After obtaining his license, Jarboe moved to the city of San Francisco, and at once entered upon the practice of his chosen profession. Shortly thereafter entering the office of the then prominent firm of Shat- tuck, Spencer & Reichert, in the capacity of an assistant, and upon the withdrawal of Judge D. O. Shattuck, the senior member, from said firm in the year 1861, the firm was reorganized with Jarboe as the junior member, under the name and style of Spencer, Reich- ert & Jarboe, the practice of which during its duration was one of the most extensive and lucrative in San Francisco. By the with- drawal of Reichert in the year 1865 and the sudden death of Spencer in the spring of 1866 the labor of the vast, extensive and ever- growing business of the firm devolved upon the shoulders of the junior member, to which he applied himself day and night, with an application unceasing, such as would have overtaxed a stronger frame than his. Find- ing that the strain on his physique was too great, and if continued, that he would break down beneath it, he, in the fall of the year 1867, associated with him his friend. Ralph C. Harrison, under the firm name of Jarboe & Harrison, than which few, if any, firms were thereafter better known on the Pacific Coast. The firm's name continued unchanged down to the vear 1890, except during the years 1870 and 1873, when C. P. Robinson was the junior member, and the years 1885 to 1890. when W. S. Goodfellow was a member of the firm. From 1890 to 1893 Mr. Jarboe's son, Paul R., was associated with him. the firm's name being Jarboe & Jarboe, and so continuing until the death of the senior mem- ber on the 4th of July, of the latter year. For the first fifteen years of his professional career, Jarboe's time was very largely occu- pied in IJU' prep.iration and conducting of trial cases before the various tribunals of the State, both court and jury cases. To the trial of a cause he went fully <'quipped. thoroughly prei)ared. and once in the court room, he rel- ished (lie keen encounter and intellectual con- tlict with his brother attorneys, but this was not to last, for his reputation as a safe coun- sellor ;ind adviser and as the highest and best ;uilIioi-ity u|)on llie (|uestions affecting realty titles, which in tlu' then early years of the Slate's history were both complicated and unsettlefl, had fast become such that he was gradually coniiielled. much against his own de- 588 History of the Bench and Bar of California. sire, to confine himself almost exclusively to the requirements of his office practice. It is within the bounds to say that Jarboe passed upon more land titles than any other lawyer in the State of California. An opinon from him as to any questions affecting title to realty was considered as tantamount to res adjudi- cata by an appellate court, and often respected more. Jarboe was married on the 25th day of Oc- tober, i860, to Mary H. Thomas, whom he had first known as a pupil attending the school where he was teacher. Mrs. Jarboe was the daughter of the Rev. Eleazer Thomas, whose tragic death on the nth day of April, 1873, at the hands of the treacherous Modoc In- dians, then at war with the United States, and while he was serving as peace commis- sioner on behalf of the government, produced such a profound sensation through the whole length and breadth of the land. A great lover of books, ever an ardent stu- dent of literature and history, of philosophy and science, Jarboe during the whole course of his manhood's career had been continu- ously gathering together and acquiring, until he possessed one of the rarest, most exten- sive and treasured private libraries in the land, and to it, as an humble student, a de- voted enthusiast, would he daily and nightly dedicate such portions of time as could be spared from his professional labors ; he rev- elled in it. It might almost correctly be called his only dissipation. In his residence in San Francisco, sur- rounded by the treasured tomes of his rare and extensive library, with wife and chil- dren about him, was Jarboe indeed "at home," and there ever was he to be found when the exactions of professional toil permitted. His home life was ever a tranquil, ideally happy, almost a perfect one; within his household was seldom, if ever, heard the sound of discord; and while Jarboe was a man of strong con- victions, he seemed ever to be the personifica- tion of gentleness itself, never a harsh word fell from his lios. His home was sacred, within its precincts loving indulgence and thoughtful kindness ever marked the routine of daily life, and no intelligent, appreciative mind was ever beneath Jarboe's roof but felt the refining and elevating influence which ever seemed to pervade the very atmosphere of that model home. It was the intention of Mr. Jarboe to have withdrawn entirely from the arduous labors of the legal profession, and to have devoted his latter years exclusively to literary pursuits, and he had already marked out the outline and commenced upon the first literary work of magnitude, a favorite sub- ject with him, and to which he had already devoted a great deal of thought and study, A History of the French Revolution, when the Fiat of July 4 came, and the unit of his life was forever withdrawn from the sum of human existence. Jarboe left him surviving, and who still survive, his wife, Mrs. Mary H. Jarboe, and a daughter, Kathryn, who was subsequently married to Mr. Jerome Case Bull, and his son, Paul R., who was his father's partner at the time of his decease. An elder son, a youth of great promise, and his father's namesake, died on May 4. 1872, aged eleven years, in- flicting a blow upon the parent the effects of which were never obliterated. In politics, Jarboe was a consistent, life- long Democrat. For the latter twenty years of his life he took no active part in the par- ty's management or organization ; prior to that, however, and during all of his residence in San Francisco previous to 1872, few, if any. Democratic state or county conventions of his State or county were held where his name did not appear upon the roll of mem- bership, and where his was not a familiar name and his a familiar figure. \X the time of his death Jarboe was a mem- Ix-r of Oriental Lodge No. 144, of Free and Accepted Masons, a member of San Fran- cisco Chapter No. i. Royal Arch Masons; a member of California Commandery No. 1 ; also a member of Islam Shrine, besides be- ing a thirty-second in the Scottish Rite. The degree of Master Mason was conferred on him in Alameda countv. Shortly after he had reached the age of majority, and since No- vember 3, i860, he had been continuously a member of Oriental Lodge. The Royal Arch degree was conferred upon him by San Fran- cisco Chapter No. i, on May 23, 1859, since which date he continued to be a member, and of which chapter he was high priest during the year 1867. The temple degree was conferred on him by California Com- manderv on the 6th day of June, 1868. On the 23d day of August, 1881, Mr. Jar- boe delivered the address before the L'niver- sity of California on the occasion of the inau- guration of William T. Ried as President of that institution, and in the course of his re- marks, with reference to education, indulged in the following apposite simile : "The teacher who, like Prometheus, has striven to bring down the sacred light to the altars of his fellowmen, has too often, like History of the Bench and Bar of California. 589 Proniftlieus, endured the pangs oi martyr- dom; and from the period when the founder of the Platonic school — sneered at bj' the golden youth of Athens, led on by the greatest mocker of his age — was put to death by the rulers of his city, until the present, when Si- berian exiles and the groans of i)risoners attest the penalty imposed on free thought by Russian despotism, the conflict between the conserv-atism of the old .system and the wants and aspirations of the people has been too painfully manifest. But with a newer and broader civilization for its inspiration, the university of modern times has assumed for itself, its professors, students and purposes, a wider, more elevated and a more humane position." The writer will close this brief sketch by quoting v^erbatim "A Friend's Tribute," which appeared in The San Francisco Laiv Journal on July 10, 1893, less than a week subsequent to his death. "To look back upon the history of the world, or even of a state, for a generation, to recall thirty-five crowded years in an in- dividual life, are educational experiences of the highest efficacy. These were the leading reflections forced upon my mind when I left the noisy thoroughfares of the city to gaze upon the well-known features of John R. Jar- boe, still and calm in death. How well I remember him in his early manhood ! How clearly I can recall his professional advance- ment, year by year, down to his payment of the great debt, and the translation of his spirit ! There, on his expressive face, I could discern the token of that great peace and con- tentment that come to all whose lives have been at once pure and intelligent. Gone from him forever the deej) lines of perplexity, the realization of knottv problems, the nice pois- ing of opinion, reminiscences of hard contro- versies, involving fraud, treachery, falsehood, violence, which he. perhaps, more than any surviving lawyer at his bar, had extracted from many liundrrds of records in which the history of land titles is written. The ])r()se of life ended — the harmony of eternity reached — the poetry of tiie futm-e louching with mys- tic beauty the closed page of the iiast, Ihese are the revelations which the face nf Jdhn R. Jarboe made to one of his old associates. His was a clean, strong, healthy, fruit ftd in- fluence upon all who were within lii^ circle. pers(jnal, social of professional, and il flowed over into the conmumity beyond. l-'rail in iiody, ui)on his mind was impressed the genius of order and enerey. Literal in his percep- tion of facts, coldly logical in his application of precedents, his imagination shone with bril- liancy in the presence of the great masters of literature, in whose thoughts and feelings he reveled, and his heart responded with consti- tutional integrity and sweetness to every lofty conception and to every natural and delicate sentiment. The prosperity of households and of institutions, the freedom from anxieties and from contention, the healing of wounds and the closing up of gaps in the sequences of descents, distributions, and transfer, are the imperishable record of his fidelity to his clients, to the law and to justice. His accu- mulation of books, through which the mighty voices of all ages speak to man, is a monu- ment of his taste and of his acquisitions. The hearts of his relatives and of his friends glow with luminous recollections of his gracious character and gentle ministrations. And the universal feeling of all who had touched the man is that a rare and noble life has finished its earthly work and gone to a higher sphere of usefulness." J. P. TREADWELL. James P. Treadwell enjoyed a fine practice in San Francisco in the early days, and be- came possessed of a large fortune as the result of investment in real estate, water stock, etc. After 1870 he was hardly ever seen in court, and the majority of the bar were not only ig- norant of his abilities, hut of his existence, also. He died Decenfljer 2j. 1884. John B. Felton said to Hall .McAllister and others in a talk one day that Treadwell was the ablest lawyer in the State: thai wlieii he (I'-elton) had examined a question and felt certain of liis case, he was not content until he had laid it before 'i'readwell. and had a tussle with him over it. Hon. John Currey had ihe same exalted t)pinion of Treadwell as a lawyer, (leorge Hudson told us one day th;il lie heard Judge t'urrey say that Tread- well h;id more lh;in ( leorge W. Tyler's self- reliance, wilhonl Tyler's .uidacily ; that he (Judge Currey) wnuld risk anxiiiiug on Treadweli's judgment. rt.';u-hed at'ior a careful examination of a law ipieslion. Tniulwell inariied Mal)el McXaughlon. l>y whom In- had live children. Me left to them, in ecpial sh;iri,'s. an t'stale which was ai)praised ;tl nearly one million dollars, and named his wile as executrix, wilboul bonds. Mr. Hud- son. In'fore named, tiled the will as attorne\". ■ iml had U'lters issued to the widow, but she 590 History of flic Bench and Bur of California. almost immediately discharged him. and em- ployed William Matthews. Mr. Matthews had removed to San Francisco not long be- fore from San Jose, where he had won celeb- rity in great land cases. He was a man who was exceptionally deliberate in the prepara- tion and trial of cases. He liked the weight- iest legal controversies, and would devote a year to the study of a single case. He was a Virginian, and truly high-toned as a gentle- man, and capable as a lawyer. He accumu- lated a fortune. Hon. James V. Coffey. Superidr Judge, to whose department the Treadwell estate was assigned in probate, appointed an attorney to represent absent and minor heirs. Mrs. Tread- well complained of this, and also objected to the appraisers appointed by the court, insist- ing on naming them herself. In company with her half-brother, she visited the Judge in his chambers, and was by the Judge rebuked. The lady, who was a child in contrast with her venerable husband, survived him nine years. Her estate was appraised at $83,500, in money, real estate and Spring Valley Wa- ter stock. In the early case of Treadwell vs. Payne & Dewey (15 Cal. 496), in which Mr. Tread- well was appellant and his own attorney, he took the position that a person in possession of real property, although not owning title, could maintain an action to enjoin purchasers and owners thereof from enforcing their title, where such title had been fraudulently ac- quired of a third person, who did not complain. But the then three Supreme Court judges, Baldwin, Field and Cope, were unanimous against him, Judge Baldwin writing the opin- ion. Mr. Treadwell rested his contention on the ground of public policy. Mr. Treadwell died of rheumatic gout, in his sixty-third year. He was a native of Massa- chusetts, and came to California in 1852. His father was a master mariner. Besides being an able lawyer, Treadwell was a fine scholar. He was learned in history, and was a mathema- tician. He was a graduate of Harvard Uni- versity. Physically he was six feet high, but lost a leg by a gunshot wound when a boy. His face was clean-cut. He had bright blue eyes, light hair, and a prominent nose. He was of rather quick temper. He had a good deal of mechanical talent, and in a room adjoining his law-office he had a carpenter shop, where he and a carpenter sometimes worked together in making a wooden leg which Treadwell had invented. He was a money-making man. The astute lawyer was also a natural trader. He i- would buy a large stock of goods and store them, and sell at the right time. Judge E. W. F. Sloan had a high estimation of Treadwell as a lawyer — and there was no more capable judge than Sloan. Judge Currey says he never knew a man who had in mind so perfect a chronological history of the acts of parliament as Treadwell, and who so well understood, therefore, the effects of such acts of parliament in modifj-ing the rules of the common law, and their enlargement in some cases of the powers of the court of chancery. He was very learned, possessed of great intel- ligence, was a close and cogent debater, and, as an advocate, he spoke in clear soprano voice, with earnestness and directness. GEORGE B. TINGLEY.* Colonel George Brown Tingley, who was prominently identified with the early history of California, was born in Ohio, August 8, 1814, on a farm adjoining that of General Grant's father. It was about this time that Colonel Tingley's father was serving as an officer in the War of 1812. On his father's side he came from New Jersey and Manhat- tan stock, a far-back grandfather being burgo- master and holding the power of three magis- trates. His grandfather and father served through the Revolutionary War, and a thou- sand pounds was a standing offer from the British for the head of the former. A mem- ber of his mother's family was of the first constitutional convention and a member of congress under Washington's administration. The grandfather and great grandfather Brown served in the Revolution to the surrender of Cornwallis — both being present at that memor- able event. At the expiration of his first serv- ice the former went back to Virginia and organized a company of all the available whites and blacks he could find and rejoined Wash- ington, proving a valuable addition to the army in its final struggle. On this side it is claimed that the family is of the same blood as that of Washington, the great great grand- mother and Mary Ball being cousins. The family which holds honorable papers signed by Governor Patrick Henry and Governor William Henry Harrison of Virginia, emi- grated from that state to Kentucky, and years *This sketch was prepared too late for in- sertion in "Men of the First Era," where otherwise it would have been more appro- priately placed. — Editor. History of the Bench and Bar of California. 591 afterwards to Ohio, the women heroically shar- ing with the men the hardships and dangers of pioneer life. In additon to daily cares, some of those noble mothers sat up at night and kept diligent watch for the Indians, while the white and black men, exhausted from the day's work, took their rest. As a boy, Colonel Tingley worked on the farm in summer and attended the log-cabin school in winter. He was a diligent student and eagerly read and imbibed knowledge howsoever he could. His father, who was a superior man, inspired the lad with the belief that he could reach any height for which he earnestly aimed. Eighteen years of age found the young man prepared to go to Judge Fishback of Batavia, and enter upon the study of the law, which he regarded as the most elevating of all profes- sions. He was cordially welcomed and be- came a member of that distinguished jurist's home, with its culture and rare social and public opportunities. Here he had access to libraries, and with a retentive memory and the ability to read and concentrate his thoughts under any condition, he improved every pre- cious hour. Personally, he was tall and well propor- tioned, handsome and magnetic and with a strong, pleasing, flexible voice that was to serve him well as an orator. At the close of his study he joined his uncle, the Hon. William J. Brown, who served in congress and was father of Hon. Austin H. Brown, and of Ad- miral George Brown, and who was then prac- ticing law with Governor Biggers in Rush- ville, Indiana. On his merit the promising young lawyer was soon admitted to the firm as junior partner. Here, politically, and in the practice of the law. he came in intimate contact with men some of whom reached the President's Cabinet, and others who achieved national reputation in the United States senate, and in diplomatic relations. In his visits to Washington he was brought into relations with the President, and that galaxy of fine minds that included Clay, Webster and Calhoun. Stimulated by such masterful in- tellects he rapidly rose in his profession and in the confidence of the people whn elected him to positions of trust. He took rank as an orator as well, and many came from afar to hear liiin in oration, and when conducting important cases. He married Miss Nancy Walker, a blue grass belle of Kentucky, the youngest daughter of Major William Walker of the Revolution, and of the War of 1812. Her family was closely related to the Breckenridges, McClel- lans and Carters, and to Hon. James G. Blaine and President Buchanan. Colonel Tingley served in the Mexican War with honorable mention, and during that time was correspondent for the Indianapolis Sen- tinel, and other journals. Upon return home he was again elected to the legislature. At the close of the session he determined to go to the gold fields. Coming from such stock and with his own fruitful experience, he was well fitted to face the perilous si.x months' journey across the plains, and to render valuable service as one of the makers of this great State. With a party, he started in April, 1849, for Califor- nia. Among the number was Colonel Thomas J. Henley, for twelve years a member of con- gress from Indiana, and who also became identified with California history. Like Colonel Tingley, Colonel Henley had a passion for hunting, and the two, when oflf on one of these jaunts, became lost from the train. Subsisting on what they could shoot and gather, they made the rest of the dangerous journey alone, arriving at Sacramento earh' in September, ragged and famished. There John McDougal of Indianapolis (soon afterwards Governor) found them and joyfully embraced them. To Colonel Tingley this gen- tleman said : "George, you are the very man we want for the legislature on tlie Whig ticket. There will be a big meeting here to- night, and you must electrify the crowd." "But, look at my rags, John!" rejoined Ting- ley. "O, clothes, be d d !" exclaimed Mc- Dougal ; "by tomorrow you may be able to find some that will fit your gigantic propor- tions." So, in tattered, red flannel shirt, brim- less hat, and toes out of boots, Colonel Ting- ley mounted a barrel at the appointed hour, and happily and effectively addressed the won- derful audience. Next day, equipped with a new flannel shirt and other appropriate garments, and pork and beans, and pick, pan and shovel, he went to Feather River, where he painied out fifty dollars a day. In due time he was elected to the first legislatiue, of whom it is said never a handsomer nor a more intelligeiU hody of men convened to establish a State. He paid fifty dollars for a pair of boots and a small fortune for a suit of broadcloth to wear to the cai)ital. where for several nights, at ex- orbitaiU i)rice, he slept soundly on the dining table, "there being no room in the inn." The stage fare from San Francisco to San Jose, 5<)2 History of the Bench and Bar of California. the capital, was fifty dollars. Colonel Ting- ley's ability was at once recognized, and he was made speaker pro tern, and placed on im- portant committees. Among his work there he formulated the criminal laws of the State and the school and homestead laws, and when at his death the courts adjourned in respect to his memory, one judge spoke of the last- ing ability with which those laws were con- structed, and another judge said that he re- garded Colonel Tingley as the most reliable and the most courteous mcm])cr of the San Francisco bar. In 1850 he was sent to tlu- senate and was prominently put forward as a candidate for the next Governorship, but gave way to Ma- jor Reading, who, because of his longer resi- dence, might perhaps poll a larger Spanish vote. He al.so received votes for the United States senate. In the dividing of the State he named El Dorado county. For a time he practiced law in San Jose with Hon. E. O. Crosby, one of the members of the consti- tutional convention. .\niong Colonel Ting- ley's clients were many of the old Spanish Dons, who owned principalities, and who, with the advent of the grasping, enterprising Amer- icans, became involved in litigation. He ac- quired valuable properties, among which was the Mission of San Jose, which, together with Beard and Horner, he purchased in 1851. As senator he followed the "Legislature on Wheels," from San Jose tc Vallejo. to Bene- cia, back to San Jose, and to Sacramento. He was placed on the Whig ticket for congress to represent the southern district, there being hut two at that time. In the canvass he as- sured the people that a transcontinental rail- road was practicable, and that within twenty years they would be able to reach New York inside of a week's time. While his listeners enjoyed his enthusiasm they did not believe that his prophecy would be fulfilled. He polled the highest Whig vote ever cast in the State, miming far ahead of his ticket, and it was claimed by the Whigs and even by some con- scientious Democrats, that he was elected and counted out. I'ut the district was so large and with no means of conveyance but horse- l)ack. that it was not thought worth the trou- ble to attempt a recount. Colonel Tingley then establislud himself in San Francisco, where he stood among the leaders of the bar, and his strong genial per- sonality made him hosts of friends. He gave much time to land and criminal practice. He had charge of the noted murder cases of that (lav, and not one of his clients was sentenced in the first degree. It was declared impossible to defeat his skill or for a jury to resist the eloquence and pathos of his appeals. In 1854 when he had charge of a famous murder case with Colonel E. D. Baker assist- ing him, as the trial progressed he felt that the judge was making rulings against him. and at one point, arising, he exclaimed : "That is as false as hell !" "Fine the gentleman one hundred dollars, not only for contempt of the court, but for contempt of the Al- mighty in asserting that there is no hell !" cried the judge. Colonel Tingley ran his hand down into his trousers pocket, and bring- ing out a couple of slugs, placed them upon the table. Thtn Colonel Baker, arrayed in his characteristic dress of blue cloth and brass buttons, arose and with mellifluous voice, said, "I quite agree with Colonel Tingley in his estimate of the situation." "Send him to jail !" roared the irate judge, and to jail he went. It was said of Colonel Tingley that he never was known to carry a purse, his trowsers and vest pockets being handier, and that no one ever made an appeal to him for aid without a generous response. If at times he was hard pressed it was because of this, and that he would not press his debtors hard, and not for lack of bountiful income. Politics was his forte and the fascination of statesmanship was so great that it interfered with his law busi- ness. Often when he had gone through the drudeery of a dit^cult case and by his genius was bringing it to successful issue, he passed it over to some other lawyer who gathered in the larger share of the fee, while he responded to an urgent call and went out to serve his party at a time when the able workers were few. A politician in the higher sense, he could not descend to the lower levels and vul- gar methods. If recognition of his ability and worth were not given without his calling attention to it, or asking for reward, he kept to his high ideals while the less noble and the underserving often rushed in and secured high official position, such as opportunity made possible because of the' intelligent working of his brain and of the integrity and fineness of his nature. Again others, without his pro- phetic insight, appropriated his valuable sug- gestions and carried them out to their own glorification. He was chief organizer and plat- t'onn builder of the Republican party in Cali- fornia and was on the ticket as presidential elector. He neglected a lucrative law practice to go out and stump and work for the young jiarty. Although the outlook was not very History of the Bench and Bar of California. 593 encouraging, he determined to do his part towards its success, and at any rate, to assist in putting it in a position of assurance that it had come to stay. His aid was invaluable in planning the campaign of i860. The State central committee then asked him to go out in the districts where there were the greatest previous majorities to overcome, and it was conceded that no man did more effective work toward carrying the State for the first time for the Republican party. With his zealous watchfulness and far- sightedness he discovered a plan in embryo which if allowed to mature might mean dis- aster to California. Without delay he in- formed the authorities at Washington with the result that General Sumner quickly and unexpectedly appeared upon the scene and superseded General Albert Sydney Johnson in command of the Pacific Division, and saved California from the possibility of being turned over to the Southern Confederacy. He was the first man to conceive and pro- pose the plan of establishing a "Union party" in California, with a platform so conciliating as to hold the Republicans and bring over the Douglas wing of the Democracy. He met with much opposition and denunciation from his own party — some members of the State central committee even coming to his home and arguing against the change of name and any concession whatever. He had worked in Stan- ford's campaign in 1859, and had seen him completely snowed under; and now if Stan- ford was to win barriers were to be broken and much persuasive, conciliating argument used. With Stanford he went on the stump and accomplished effective work. He wrote a Union address and submitted it to a com- mittee of whom the late Benjamin P. Avery, since United States minister to China, was the head. It was pronounced so complete as to need no amendment. The next legislature passed Union resolutions introduced by Hon. Walter Van Dyke, and this gentleman and Colonel Tingley were delegates to the ■ first Union convention called in the State, and that con- vened the following Jiuie at Sacrament n, and we know the long years in which that i)arty remained in unbroken power. Without ask- ing or seeking. Colonel Tingley was appointed to office by Lincoln. Lincoln's favorite cab- inet officer, Hon. Caleb R. Smith, had prac- ticed law with Colonel Tingley in Indiana, and now both he and the president sent per- sonal letters to Colonel Tingley requesting him to come on to Washington, and assuring him that wiiatever he desired should be accorded him. This coming from the great president who had known him and understood him well, gave him his last great pleasure. He was pre- paring to start for the capital when his sud- den death occurred — and the world was poorer for the loss of a gentleman of the old school. Of his family his wife is still living, and two daughters — Margaret Manorah, who married Colonel Thomas B. Ludlum, and has a daugh- ter, Alice May, and Mary Viola, who mar- ried Senator James Henry Lawrence, and has a daughter, Constance Violet. W. W. HAWKS. W. W. Hawks, a brilliant spokesman of the old Whig party ; an able lawyer and debater ; State senator, 1855-56 : died at Honolulu, of consumption, a year or two later. He was a native of New York and was a son of Bishop Hawks. His oration on Henry Clay is in The Whig of August 11, 1852. W. W. PENDEGAST. William Wirt Pendegast grew up in Yolo county, where his father was a well-to-do farmer, and also a clergyman of the Christian denomination. 'J he son was, as a youth, tall and well built, with a large, well-shaped head, and walked erect. He received an excellent education. Upon being admitted to the bar he went to Virginia City, Nevada, to prac- tice, in 1864, but remained only a short time. Returning, he settled at Napa. He soon be- came a prominent figure at the bar. His powers of mind were of a high order. He was very learned. In argument he was clear and logical, and exhaustive, his expression at once chaste and terse. His manner, free from af- fectation, was easy and pleasing. Mr. Pendegast was elected to the Slate senate from Na])a county in i8()7. and re- elected in 1871, serving at four sessions, the first beginning December 2, 1867, and the last ending March 30. 1874. He was an interest- ing and skillful debater. In committee he was full of wise suggestions. No senator exerted a greater or a cleaner influence, his party be- ing dominanl in lliat luxly a1 all the ses- sions he atteniK'd rxcrpt the first. .\l the last session, the t whuI iet h. when Charles Sunmer's death was annoiniced. he, although a zealous Democrat, offered resolutions of regret and eidogy. which were adopted. He was chair- man of the senate judiciary committee at that session. He was author of the act making 594 History of the Bench and Bar of California. women eligible to educational offices, which was approved by Governor Booth, March 13, 1874. He was also author of the local option act of March 19, 1874, which the Supreme Court declared unconstitutional in ex parte Wall. (48 Cal. 323-) When the code of civil procedure and the civil and penal codes were presented to the legislature at the session of 1871-72, they were only adopted after favorable reports from a joint committee of the two houses. Mr. Pen- degast was the chairman of this important committee. (See page 192 of this History.) This talented man died on the ist of March, 1876. He was buried at Woodland, where his father was still living. He was not then a member of the legislature, but both houses passed resolutions of profound respect for his memory, and, more than this, they did some- thing without precedent— they attended the funeral in another county, adjourning from Friday. March 3, to Monday, Alarch 6. Mr. Pendegast was born in Monroe county, Kentucky. February 8, 1842, so that he at- tained only the age of 34 years. He came to California with his parents in 1854, was raised and educated at Woodland, and was admitted to the bar by the Supreme Court in 1863. He was twice married, but both wives are dead. He left a son and two daughters, all of whom are living. His father has been dead more than twenty years, but his mother is still re- siding on the same spot in Yolo county, where they settled forty-five years ago. His brother, R. W. Pendegast. lives at Woodland. JOHN G. McCULLOUGH. General John G. McCullough, who has now for many years been a resident of Vermont, once held a distinguished place at the bar and in public life in California. He was a member of the assembly from Mariposa coun- ty in 1862. On April nth of that year he and H. G. Worthington, by order of the as- sembly, went to the bar of the senate and an- nounced the impeachment of James H. Hardy, Judge for the Sixteenth Judicial District, com- prising .Amador and Calaveras counties. The other managers chosen by the assembly to conduct the impeachment procedings were William Higby, Thos. B. Shannon, and Thos. N. Machin. There were twenty-two arti- cles of impeachment, and the accused was found guilty on one charge, by a vote of 24 to 12. and was removed from office. The charge sustained was that of using treason- able language against the United States Gov- ernment. The country was then passing through the Civil War. General McCullough was State senator in 1863. He signed the report to unseat Senator Leander Quint, of Tuolumne and Mono, and to seat Jas. M. Cavis, which report was adopted. His senatorial term was interrupted by his election as attorney-general. He was attorney-general from December, 1863. to De- cember, 1867. A Republican in politics, he was defeated for re-election when the Demo- crats swept the State in 1867. California has been generally fortunate in her chief law-officers, and, of the nineteen men who have thus far filled the office of attorney- general, John G. McCullough is to be placed in the first rank — so far, at least, as regards an able and faithful administration of that office — by the side of James A. McDougall, John R. McConncll. William T. Wallace, and Jo. Hamilton. In his official report of November 6. 1865, he argued against any attempt to codify the laws, unless it be done under the supervision of the best talent ; and declared that "the es- cheat laws of this State are very lame in many provisions." In 1867, he recommended that if any changes be made in the Crimes Act. or the Criminal Practice Act, the New York codes be adopted almost as a whole. He therein stated that he was the author of the law admitting the testimony of parties to the record and in interest, and that he was in favor of negro testimony ; and he asked that other disabilities of persons to testify be re- moved. Governor Low in his biennial mes- -sage of December 4, 1867, paid a strong trib- ute to Attorney-General McCullough's able and faithful service. On leaving the attorney general's office. Gen. McCullough located at San Francisco, and formed a partnership with James T. Boyd, in the practice of law which lasted from the ()l)ening of the year 1868 until 1873. During this period, in 1871, General Mc- Cullough on a visit to the East, married Miss Eliza Hall Park, daughter of the pioneer bar leader and capitalist, Trenor W. Park, and two years later he removed to Vermont, where Mr. Park had settled a few years before. General McCullough was born in Newark, Delaware, and is of Scotch-Welsh descent. He was early left an orphan, his father dying when he was three years of age. and his mother wlien he was seven. His earlv advan- i ■;■<■ 9 .^..„. ,, History of the BencJi and Bar of California. 595 tages were few ; but he had an eager desire to learn, and an indomitable spirit, and suc- ceeded in graduating from Delaware Col- lege with the highest honors before reaching his twentieth year. He then entered the law office of St. George Tucker Campbell, of Philadolijliia. dividing his time between a course of study in the law school of the Uni- versity of Pennsylvania, and practical work in the office. He secured from the University the degree of LL. B. In 1859 he was admitted to the bar of the Supreme Court of Pennsyl- vania. bnortly after his admission to the bar, Gen- eral McCullough came to California. He made a short stay at Sacramento, where he was ad- mitted to the bar of the Supreme Court, and then located at Mariposa. To our glance at his career in California, we may add that since he left us he has always been the same active and influential force that he was in this State, only his sphere has generally been outside of the legal profession. He is now a member of the Vermont senate, and president pro ton. oi that body. His business interests require him to spend several months of the year in New- York city. He is president of the Chicago and Erie Railroad Company and has been such since the opening of that division of the great Erie Railroad. He is president also of the Bennington and Rutland Railroad Company, and a director of several banks and insur- ance companies of the first importance. In 1900 Middlebury College conferred upon him the degree of LL. D. He has a large fortune. and personally is universally well liked, having a fine presence and an animated, engaging ad- dress. We requested Hon. James T. Boyd to give us something of his own to add to or incor- porate with, the foregoing notice of General McCullough, and received from him a letter as follows : "S.\N Francisco, Nov. i, 1900. -My Dear Mr. Shuck: "You say you assume that my former law partner and I are still friends. It has been my good fortune, both in business partnerships and in my clientage, to come in contact with many lovable men. Not least among them is my old friend and partner of whom you speak, and who I am sure has the same high regard for me that I have for him. But telling,' for publication, of those qualities of mind and heart which made our intercourse so pleasant, and which keeps the memory so fresh and so enduring, is another proposition. "The General left our profession when (piite a young man. He gave promise at that time of reaching its highest honors. The profes- sion can ill afford to spare such a rrian. But from all I hear of his career in the business world, the distinction that would have honored the lawyer has deservedly fallen upon the shoulders of the business man and statesman. "I am very truly yours. "Jamf.s T. Bovii." General McCullough took an active interest in the presidential campaign of 1900. He was chairman of the Vermont delegation to the Republican National Convention that met :it Philadelphia. 77//: HI)/ TOR. The ADVENTUROUS CAREER of L. A. NORTON "What constitutes a state?" asked a great linguist and lawyer, in stirring verse. And he finely answered his own question: " • ■ ■ Men. high-minded nieji ; Men who their duties know, But know their rights, and knowing, dare maintain." it would be a robust state made up of Nor- tons. We are to speak of an exceptional char- acter; a man strong in mind and body, of rugged honesty, of independent and dttc-r- mined nature, straightforward, never court- ing a quarrel, but always refusing to get out of the way of peril — dauntless among men, gentle with children, knightly to women. His courage, both moral and physical, was jilie- nomenal. ;ind his deeds of prowess, generally episodes of liis professional praeiioe, give him an altogether uni(|ue pl;ice in our History. I'-.\peetant reader, you are not to lie ush- ired into the realm of romance, but shall see ibi' paiioiam.i inifold of a real life. .And, wlun ,ill b.is 1n'en presented, yon will .isk involuiu.irily, t^mld novrlisi ])roduce a par- allri:-' i lu' Colonil ]iulilislir(l liu- strange story, a few years bet'oii- Ins life endetl, as .in inter- esting record for his children and friends. And indeed, it will ever be of deep concern to all minds, ";is showing," to cpiote his own 596 History of the Bench and Bar of California. words, "what one waif cast out upon the stormy billows of life, has accomplished ; or, in other words, what a determined spirit, pos- sessed of energy and perseverance, may achieve." Of the most remarkable of the scenes and events which he recorded, there were still many living witnesses. Of others, hardly less strange, he omitted mention. He had writ- ten in one place that at the ancient city of Pueblo Viejo he once lay in the shade of a castor-bean tree over thirty feet high and over eighteen inches at the butt and over thirty years old. "1 struck it out," he said, "and yet when any of my readers go to Los Angeles, if they will visit the old Spanish part of the city ; they will find a castor-bean root with four branches coming from it, either of which is over six inches through and any one who will go to Anaheim, Los Angeles county, and travel a mile northeast of that place, can credit my cactus story." Colonel Norton's father, of English descent, was born in Connecticut and was a farmer. His mother was of German extraction, and w^as born and raised in Pennsylvania. The father was a volunteer soldier from New York in the War of 1812. Colonel Norton, the fifth child of a family of nine, was born in Chautauqua, Franklin county, New York, in the year 1819. His parents were poor, and our subject set out to earn his own living at the age of eleven years. "1 tied my worldly possessions in a pocket handkerchief," he said, "strung it over my shoulder, and, like a quail with a shell on its back, I left the nest with twenty-five cents in my pocket and dug out on foot. The second day I arrived at the Read Mill, St. Lawrence county. New York, where I hired to a man by the name of Tibbits, at four dollars per month, and I worked four months. At the end of that time I again shouldered my pack, with my sixteen dollars, and went to Ogdensburg, where I crossed the St. Lawrence river and took a Canadian steamer to Queenstown, en route to Upper Canada, now known as Canada West, where I had uncles residing. I then walked to Niagara Falls, and after visiting the Falls, went up the Niagara river and crossed to Black Rock, thence to Buffalo, and, after a couple of days at Buffalo, I found a schooner going up Lake Erie, and soon made arrangements to work my passage on board of it up the lake. "It was claimed that the vessel was loaded with brick ; I have since been of the opinion liiat it was a smuggler. On our way up we encountered a heavy gale, but at length we landed in the woods at an anchorage called Nanticoke. I went on shore in the schooner's boat, and again, with my pack on my back, I threaded the Canada shore of Lake Erie for several miles through the woods before I came to any settlement ; but at length, after a day's hard traveling, I reached Long Point, where the farmers were not yet through their har- vest. Hands were scarce, and I soon con- tracted for fifty cents per day (half a man's wages). I worked twenty days and got ten dollars, and again pursued my journey." He cannot be followed in his wanderings over the continent, but he early interrupts his narrative to declare that, "during all my per- ambulations, I never lost an opportunity in learn to read and write." At the age of seventeen he was in Canada, and turned out with the Patriot forces in rebel- lion against the British government (1837). He was wounded and taken prisoner. Strange adventures attended him even in his prison life, and in hospital. He and his companions were sentenced to banishment, and each being asked, "Do you accept the sentence, young Norton answered in his turn, "Would a man refuse to be banished from hell to heaven ?" He struck Chicago when it had not more than fifteen liundred inhabitants — but his ex- periences in Illinois and in Michigan, must be passed over. He enlisted for the War with Mexico, in the Twenty-second Illinois Volun- teers, his company being from Kane count /. He raised the company, but refused to be elected Captain, as he had been promised the position of Quartermaster for the regiment. Before New Orleans was reached he had a serious attack of measles, and his Colonel or- dered that he be left in hospital. He prevailed on the Colonel to countermand this order. The surgeon told him that if he sailed with the regiment they would have to bury him at sea. "I could not see it in that light,," said Colo- nel Norton, "but told the doctor that I was going, and if I died on the passage I wanted them to bury me on the Mexican shore, and not at sea, for I had started for Mexico, and to Mexico 1 was going ! I gave my servant twenty dollars for the woman who had nursed me, and told the boys to prepare the litter, for I intended to keep my promise with them ; but instead of the litter they mounted me on the Colonel's horse, with a man walk- History of the Bencli and Bar of California. 597 ing t-ach sidt- to steady nie. and in that way transported nic to the ship." He served through the Mexican War, and the exciting scenes in which he was the chief actor were many. "Captain Harvey." he writes, "was nominally in command of our company, but as soon as we landed in lam- pico, he called upon the alcalde, was a willing recipient of his bounties, and imbibed in copi- ous libations of mescal and aguardicnta. Ow- ing to his immense capacity, he was carrying the load of two ordinary men. and the com- mand devolved first upon myself, and sec- ond upon Lieutenant Conkling. Conkling and myself had made our arrangements thus: We were to establish a local guard in the town. I was to take command of a small scouting party, and under cover of night, ad- vance on the road to Tampico el Alto, while Conkling held charge of the balance of the command. The local guard was stationed ; among them was a boy i)y the name of Spalding Lewis; he was a tall lad of six- teen, and was determined to go to Mexico with us from St. Charles. His mother was a widow, and 1 think Conkling, as well as myself, promised the mother that we would, as far as possible, protect and guard her son from all harm. Well, when Spalding was placed on guard, I directed him to challenge all who approached him, and stop them. But said he, if they will not stop, what then? I replied, you know your duty, stop them. "'Fhc guard had been .stationed half an hour. 1 had my scouting party all in line, when I heard the report of a musket. I or- dered the scouting party on a double-quick, and we soon reached tiie spot from wlience the report proceeded. There I saw Lewis deliberately ramming home his cartridge. I said. "SiJal.. what arc you shooting at?" He quietly ijoinled down the street, remarking, "That fellow came up: I challenged twice, when he started to run. and I slapped it to him." I looked in tin- direction, and .saw a Mexican lying on his face, making some feeble attempts to raise himself. I approached him. and found that he was shot through the heart, and in less than two minutes he was (luite dead. 1 lianded him over to the alcalde, assuring liini that unless he took more i)auis and kept his men within their jjroper limits, more of them would share a like fate. '1 he victim was soon recognized by the police, and the alcalde said it was no loss, as (he fellow was a notorious thief and cut-throat." "On our return to camp. T fnund Captain Harvey, who immediately assumed command of the company, and wanted to know what 1 was going to do with so many men. I in- formed him that I was about complying with the orders of General Gates, by throwing a scouting party out on the road to Tampico el Alto. I had intended to take thirty men, but he blustered around, and said he could not spare so many men from the command, as it would endanger its safety. But the gal- lant Captain had forgotten that I was placing myself between him and all danger. After considerable wrangling, it was agreed that I might take twenty, and 1 was to select my men. ( But my young blood was up. and I cursed him. and called him a drunken cow- ard.)" He tells of his critical meeting with a man afterwards conspicuous in California, in law and politics : "On our arrival in Vera Cruz, one of my wagon masters came riding up to me. bare- headed, with a deep sword-cut in his fore- head, the blood running down his face and neck. He saluted, and said, 'This, Captain, is what I got for obeying your orders.' I asked him to explain, when he said that he was taking his train of wagons to the custom house for distribution, according to my or- ders, when Captain Harvey Lee rode up and ordered the driver of his company wagon to l)rcak the line and drive immediately to his (juartcrs. and when the wagon master re- sisted his order, he drew his sword and gave him the wound (which was a very serious one). On hearing this recital. 1 put spurs to my hor.se and rode off in pursuit of Lee. I soon foimd him. and at once denounced him as ;i (l.istard ami a coward. We both drew and would have settled the matter right llure. l)Ut for the interference of a number of officers present. 1 then rode off ami pre- ferred charges against Lee. Hut the yellow fever had just broken out in \'era Crliz. and the army was n-ady and anxious to embark for home, and the charges would necessarily involve a trial which would detain us and other ofHcers for several days, and at the e.irnest solicitation of (he officers. 1 withdrew the charges and allowed Lee to be discharged from arrest : which was done wi(h great rc- IiKM.nice on my ii.iri. :is it was ;i dastardly act on the i)art of the C.ipCiin. 1 have never -.ince heard of (he poor wounded wagon master, but if he is still alive, and (his should liv chance meet his eye. he will see that. 598 History of the Bench and Bar of California. though from the condition of things I could not avenge his wrongs, at least I have not forgotten them. And as to Captain Harvey Lee, 1 never saw him again until I had been several years in California, practicing my pro- fession as an attorney, when to my surprise, I found that he and myself were employed on the opposite sides of a case. I learned from him that he had been practicing law in Beni- cia; and in justice to the dead, I will here say that when I called him a coward, I did not believe it myself. 1 think he was a brave man, but with much of the tyrant in his com- position." This is what occurred on the march from Contreras to Churubusco: "I saw a command of from five hundred to six hundred lancers coming up on a brisk trot, and their leader bravely riding in advance of the column. In fact, he was so far in ad- vance that I thought he wanted a parley. I rode out towards him, when he immediately drew and charged out to meet me. I drew my saber and we met about- midway between our commands, and, as we advanced, I sup- pose that we were each measuring our man. At least I was measuring mine. He was a compactly built man of less length of limb, but rather higher than myself. He was mounted on a splendid (and speaking com- paratively) large mustang. I was mounted on an active American horse. We met. I at once discovered that our horses were about equally trained, but, with all my boasted skill (having been trained in cavalry saber exercise by Lesser Lebenstein, the Pole), my antago- nist was the better swordsman of the two. "His first attempt was to cut my rein. Find- ing that I was no novice in the art, and I, about the same time, discovering that I had more in my man than I had bargained for, business commenced in earnest. We both held ourselves close on our guard, while we rapidly plied our cuts and parried with all our skill. I pinked him a little in the right side by an interpoint that he had not fully parried, when he rose in his stirrups, dealt me an over-hand cut, which I had not found laid down in our tactics V hence I claimed it out). I tried to parry, but his blade followed mine down to the hilt, severing my guards like straws, and buried his blade deep in my wrist and palm, severing the cords and pulsating arteries of the palm, and being heated by my exertions in the fight, the blood spurted for many feet, and full in the face of my adversary ; but, un- fortunately for him, he had buried his blade so deep in my guards that he could not im- mediately withdraw it, and by suddenly turn- ing my arm and bv a rapid motion of my left hand, retaining my rein, I seized my revolver and opened fire. When I had discharged four shots in rapid succession, such had been his exertions that he had withdrawn his blade to within six inches of the point. During the contest, there had been no advance, nor was one shot fired by either command; but when they saw his saddle empty a most deafening shout went up from my men. I wheeled my horse, ordered an advance, and rode through the lines to the rear. The first volley from our carbineers was at point-blank range. Still ad- vancing and drawing their holster pistols, they literallj' fired into the enemies' faces, while they were blazing away with their old esco- pets with but slight damage to my command, and by the time we came to the saber, the foe was in rapid but demoralized retreat. My boys would have pursued their advantage fur- ther but I did not allow them to do so, as my duty only extended to the protection of my train. As it was, I never saw as many men Iwrs du combat for the length of time and numbers engaged, the whole afifair after their leader fell, not occupying more than ten min- utes ; but I could no longer keep my saddle, and was borne to the rear, when it was dis- covered, from the great loss of blood, that they could not take up the arteries, and the surgeon was compelled to give me alcohol to raise a pulse so as to enable him to take them up. It was found on exammation that twenty-seven of the enemy were dead on the field, besides fifty-two wounded prisoners. And thus ended the hottest little time I ever experienced in Mexico." But his experiences were diversified, and now "grim-visaged war hath smoothed his wrinkled front, . . and capers nimbly in a lady's chamber to the lascivious pleadings of a lute." Across the street from the Captain's quarters in the city of Puebla, lived an aristo- cratic Castillian, Queretaro, President of the Mexican senate, absent on official business. His son Edwardo, fourteen years old, became attached to the bold American officer: He was very expert witli the lasso, and we amused ourselves hours at a time by his throwing the lasso and by attempting to guard against it with my saber ; but I must say I found it impossible to parry and i)rotect my- self against his skill. He would sometimes catch me around my neck, and if I happened History of the Bench and Bar of California. 59'.) to step, perhaps he would catch me by the foot ; and. when all other parts were guarded, he would frequently catch me by the sword- arm. "Things continued in this way about three weeks, only Edwardo became so attached to me that he was with me two-thirds of the time. At length he became very solicitous that I should visit him. I assured him that I could not on his invitation, as I was an entire stranger to his family; but before this time he had told me the family at home was com- posed of his mother, a sister nine years old, and his Aunt Amelia, who was twenty years old. In three or four days after this, Ed- wardo told me his aunt wished me to visit them. 1 told him if 1 visited their house the invitation must come from his mother. The next day he informed me that his mother wished me to visit them. Consequently I re- solved to do so, as I could not doubt that they were ladies and moved in the best society. I took my interpreter and went over, and was introduced by the bo}' to his mother and aunt, as his friend. I remained an hour and was delighted with the ladies : but it was hard to tell who were the most disgusted with my interpreter, the ladies or myself. He all the time indulged in a twaddle about himself, and failed to interpret one-half of what we wished to say to each other. When the time came for leave-taking, they warmly insisted on my coming again, and in these words, that the house was mine. In return, I assured them that I would avail myself of their kind invi- tation, and that I should bring no interpreter, but that they should all act as my interpreter. "In the first interview they asked me if I was married, and I assured them that I was. But the next day Edwardo asked the same question of Lieutenant Conkling and of other officers ; they, supposing that they were play- ing into my hand, assured him that I was not married, and was onlv joking with them when I pretended to be married. So when I called again, several days afterwards, I was warmly received by the whole family, and more espe- cially so by Miss Amelia, who took upon her- self the task of teaching me to speak their language, and no one ever had a more zealous teacher. I would frequently get off some Mexican phrases, when she would check me and say, "Este no hiissiia; csfc lingua lotros indii." Time rolled on, and somehow when not on duty I found myself with my friends most of the time. I was not slow to learn that my little Amelia was becoming very fond of mc, and, in fact, loo fond for her own peace of mind. I often said to her, 'You must not be too fond of me, for I have a wife at home.' She only laughed at me, and said that she had caught me at my trick; that I was not mar- ried; for all the officers said so; that I was only fooling her. I found it impossible to convince the poor girl against her will ; there- fore things went along in their own way. "Amelia was pretty. She was of medium height, well formed, w^ilh a light and elastic step. In complexion she was a blonde, with a full, deep blue eye, and as fair as a lily ; but I do not pretend to dwell on her perfection further than to aistinguish her from the "greaser" horde. I had introduced her to a few superior officers, and it was amusing to me to hear Amelia's perfections set forth by them. The Spanish are a very jealous race, and she seemed to think I would be of the same organization ; for she would pass the open window or step to the blinds every min- ute during her call, for fear I might be jealou.s of her. During our acquaintance I fell ill. When they heard the fact they sent Edwardo over to my quarters and insisted that I should come to their house, where I could have better attention than I could at my own quarters. I finally complied with their wishes, and was with them for over three weeks, and though Amelia was waited upon by her own servants, she would not allow a servant to wait upon me. Everything that I needed came from her own hand. "As I convalesced, one morning I took a walk in the Passo, and had a little chat with an early walker, who, as well as myself, was out to take the air. She was a young Mexican girl of the better class. She arranged a but- ton-hole bouquet and pinned it on the breast of my uniform. On my return I met Amelia, and as soon as she saw the flowers her eyes flashed with fury. She sprang to my breast like a tigress, seized the flowers, dashed them to the floor, stamped them beneath her little feet, and exclaimed in her own language, 'You have no love for me.' She seized her diamond-headed stiletto, passed it lo me and exclaimed, ■Jlero ; kill me ; I have nothing to live for.' I finally got her quieted down and asked her what she meant ; that I was not conscious of having done anything to offend her or any injustice to her. She said that a woman had placed those flowers on my breast. I admitted it, but assured her that I gave the matter no consideration, and did not know that it meant anything more than a little 600 History of the Bench and Bar of California. coquetry. But I then, for the first tune, learned that the Spanish language of flowers is more read and better understood than ours. "After 1 had quite recovered my health, and was about to return to my own quarters, 1 told her tliat they had been at a large outlay for me. and 1 wished to compensate them for my trouble and expense while there. Amelia treated my offer with contempt and scorn at first, but soon changed to a flood of tears, and assured me that money was the least of her care : that she had plenty of money ; she threw me her keys, saying, 'Here are the keys to my cofl'er : if you want money, help yourself: 1 do not want yours; I did not take care of you for money.' She was an heiress ; she and her brother owned three large haciendas, and one fine day she asked me to visit one of them with her. I entered one of their clumsy car- riages, and we drove out there. 1 was anuised and yet perplexed at her. for all that was to be seen or enjoyed was us and ours. The place was a lovely one; the buildings were magnificent, situated upon a lovely plateau of about one thousand acres. They were of adobe, ccmtaining an inner court with plats of grass and fountains inside. The whole was inclosed with a high adobe wall, with broken glass cemented in the top. which all the way around inclosed the premises. This was for ])rotection against the assaults of ladrones and guerrillas. It was just the place where a man. with that beautiful creature, might content himself to while away a life-time. She wished me to visit her other two liacicncias; but 1 never went out to see them. The whole fam- ily were good and kind people to me, and at the close of the war, when the order came for us to take up our line of march, I hardly knew how to break the news to \melia ; for the four months of our acciuainlance seemed to her. so she told me. to be as one bright vis- ion. But alas! the parting had to come. I left my Amelia in her sister-in-law's arms, in a swoon, and have never seen nor heard of her from that day to this; but think not that I left her without a pang of retnorse. not for any perfidy on my part, for I never deceived her. but my principal regret was that she loved me so fondly." We will let this (k-lightful but pathetic scene, so well pictured, curtain our hero's after w^ar- fare. But when the war ended, and he re- turned to his home in Illinois, he very soon had as stubborn a fight and as close a call as any he had experienced in Mexico or Canada. Let him tell it: "l made the accjuaintance of a young fellow by the name of Frederick Lord, a son of Dr. Lord: 1 think I was about one year his se- nior. It was the custom of that country every Saturday afternoon to meet on the common and wrestle, and all who ever knew me in my younger days can testify that 1 was an expert wrestler: in fact. 1 threw all the young men in tiiat vicinity. 1 was light, but tall and very active. On the other hand, Fred Lord was a powerfully built young fellow, but with my skill and action 1 could always handle him. Our acquaintance extended over a period of more than ten years. When Fred had matured he was a perfect giant, standing si.x feet six inches and weighing two hundred and sixty pounds ; and for about tour or five j-ears be- fore the Mexican War he had been bullying Iiis way through the world to that extent that lie had become the terror of several counties. "After I had taken my departure for the seat of war. Fred volunteered and went out as :i private : and owing to his natural insubordina- tion, he had been frequently ptinished. and had imbibed such a hatred to army oflicers that when he returned home he declared that he had whipped every officer of the army in ]\Iexico that he had met after the disbanding of the troops, and he intended to whip Nor- ton and Conkling (one of my Lieutenants, who lived in St. Charles), and then he would be satisfied ; Fred and I had always been friendly, and there was no cause for the threat. But when it was reported to me, I sent him word that he had better commence on me. as 1 was the smaller of the two. and perhaps when he had whipped me he might not want to attack the other. "It was Monday morning, and the Circuit Court of Kane county was to commence its session that day. The Geneva Hotel was packed with ])eo])le, and about 8 o'clock 1 walked over to the hotel to get my morning •cocktail.' 1 met J. Y. Scammonds (author oi "Scammonds" Reports") and an eminent attorney from Chicago, by the name of Brown. .\fter some conversation, Scammonds asked nie if I made the acquaintance of General Taylor ( the men were canvassing for Tay- lor). 1 informed them that I had. They a>ked me when I had last seen him. I replied tiiat 1 left Taylor at the St. Charles Hotel in Xew Orleans, on the 29th of June last. Just as I made the reply. Fred Lord stepped out of the parlor, where he had been carrying on a flirtation with some girls, and said, "Where History of the Bench and Bar of California. 601 do you say you saw General Taylor last .''' I repeated, 'In New Orleans, on the 29th of June last.' He said, 'General Taylor was not in New Orleans on the 29th of June last.' I replied, 'Permit me to tell you, you are a liar, sir!' At this he sprang upon me and struck at me. "I attempted to fend the blow, and at the same time threw my foot back to kick him ; but his arm was so heavy and the blow so powerful that I did not entirely escape. He struck the upper part of my forehead, my head striking some one in the crowd. Bringing my foot back to kick him threw me from my balance and made it a very pretty knock-down. But it was of such a nature that it did not in the least stun me. He knew that if he whipped me he must work lively, and at once bent over me. and, thrusting his liand in my face, attempted to gouge my eye out. His thumb nail missed my eye, but cut my eye- brow. At this I grabbed his neck-tie with my left hand, took a twist and sprang up, raising him with me, and when we struck the floor again it was fourteen feet (by measurement^ distant through the crowd. "I retained my grip on his throat, coming on top of him; but he had thrown his immense legs tight about my loins, and had clutched both hands tight in my hair, where he held me as in a vise, while my right hand was at liberty until it was all stove up. (I remember they applied oil of wormwood after the light, to take the swelling out.) Finally I thought to myself, I can't get to strike your face to spoil that, but 1 will mark you anyway. So I reached up and clawed down his face a couple of times. It looked very badly for a while. At this stage of the game 1 found his hands getting very loose in my hair, and some one in the crowd said, 'Take Norton off ; see how black Fred is in the face,' when a man by the name of McMear cauglit a fire-poker and declared that he would kill the first man who interfered ; that Norton could whale Fred the best day he ever saw. (Fred had once pounded McMear very badly.) I continued to choke him ; his hands and legs had become quite loose, and T was about to. spring from him and stamp him to ])icces. when old Uncle Jimmie Brown, the landlurd (wlioni no one would strike), exclaimed. "Take liim olT, he is killing the man.' "At this the crowd concluded to release Fred. They caught hold of me and in at- tempting to pull me off they pulled Fred up to a sitting posture, but could not get my hand free from his neck-tie ; so they procured a knife and cut the tie, and after throwing a few pails of water over him, he came to, and evinced himself satisfied. Though a powerful man myself, I look upon my victory as a mere accident, as I could not compare with him in physical powers. But the accident had its effect. I have many times been in a crowd and have heard men say, "That is the man who whipped Fred Lord.' "In this connection 1 may add that, after a time, Fred made his way out to the Missouri river, and, at Traders' Point, married a French lady who was possessed of quite a fortune ; but he soon went through with that, and when I was on my way to California I stopped a few days with my brother, who lived but a short distance from Traders' Point, and he and Fred were very good friends. My brother told me that Fred was at the Point, and was in company with a big half-breed Indian burn- ing lime ; that he had often expressed a desire to see me. saying that I had served him right, for he had no cause of quarrel with me. So I finally decided to go down to the Point with my brother and call on Fred. "When we arrived at the Point and inciuired for him. some of his crowd said he had been gambling the night before and was across the street taking a sleep. I went over, the crowd following me. (I suppose my brother had told them al)out the affair.) I found him fast asleep, and as I walked up to him. he looked like a great giant. He was dressed in buck- skin, in regular frontiersman style, with a re- volver and knife in his belt. I .shook him and called out, 'Fred.' He awoke, looked me full in the face and exclaimed. "Lew Norton, l)y G — d !' He sprang to his feet, took me by tlie Iiand. and said. 'Here. boys, is the only man tliai ever whaled me; and no man ever deserved il more llian 1 did: let's go and take a drink." "I pursued my journey to California, l)ul not more tli.m lliree weeks after tlie occur- rence ;il)ove narrated. i'"red got into a (|uarrel with and whipped his half-breed partner. The next day afterward, as he was hauling lime- stone to ilu- kiln, tlie lialf-breed secreted him- self in the brush ne.ir the road, with an old- fashioned \'ager, and when Fred had got past hini he tired, tearing an enormous hole through the vit;tls of iiis vieiini. Fred turned his head and exclaimed, "U— n you, I would make you pay for that if I could live an Iiour.' 602 History of the Bench and Bar of California. He then fell over on his load and expired in n few minutes." Pending the seltlenicnl of his accounts as quartermaster with the government, Captain Norton entered on the study of law in the office of W. D. Barry, iisq., at St. Charles, Illinois. He was admitted to the bar of the Supreme Court of tliat State, in due course and shortly afterwards set out with a parly bound fnr California across the plains, he being in command. He reached Placerville in September, 1852. After mining for some months, with a good deal of success, he went to San Francisco, bought a law library (Colo- nel E. D. Baker and Judge J. B. Crockett as- sisting him in the selection), and began the practice at Placerville. It was 1853. In the summer of 1855, when that part of Utah Territory, which is now Nevada, was organized into a judicial district, with W. W. Drummond as United States Judge, and Or- son Hyde, the Mormon elder, as Probate Judge, the last-named, a cultured man of some fine qualities, crossed over the Sierra to Pla- cerville and prevailed on Captain Norton to accept the office of district attorney of the new settlement. On the 5th of July, while he was arguing a cause before Judge Drummond, some one in- terrupted him to say that Placerville had been wiped out by fire. He owned an entire block of buildings and a residence in that city, and only the residence was saved. His wife, who had remained in Placerville, rescued his librar}-. He rebuilt, but soon became satisfied, to employ his own words, "that every blov struck in a mining county helped to exhaust the native wealth of the county, while each blow struck in an agricultural county, helped to increase its wealth." In the fall of 1857. he settled at Healdsburg. Sonoma county. There he passed the length- ened span of his subsequent career, and he often wrote in panegyric of the natural beau- ties and unfailing productiveness of that re- gion. We will let him tell of his first case there ; of the good fortune that it led to, and personal perils that continued to follow him. "The first case in which I w^as engaged was, The People of the State of California vs. Charles P. McPherson, charged with an as- sault with a deadly weapon. I was employed on the defense, and one James Reynolds (now dead) was prosecutor. The justice, instead of sitting as a committing magistrate, took jurisdiction of the case to try it. I did not demur to the jurisdiction of the court. The evidence disclosed the fact tiiat my client had, in the town of Geyserville, struck the com- plaining witness with a small stick, about one inch in diameter; but, unfortunately, there was a large-sized splitting chisel at one end of it. used for splitting iron in a blacksmith siio]). I convinced the jury that it was not among the deadly weapons described in the statute, and my man was acquitted on that charge, but, under the advice of his counsel, McPherson pleaded guilty to an assault and battery. Receipts of first month's practice, thirty dollars. "About this time a gentleman stepped into the office and introduced himself as Egbert Judson, of San Francisco, and said: T am part owner and agent of the new Sotoyome Rancho. The ranch is covered with redwood limber, and is only valuable for the timber, and I am being robbed by more than a hun- dred trespassers, who arc cutting down and carrj'ing away my limber in lumber, pickets, shakes, rails, and for other uses. The entire valley has been and is being fenced from my land. I started up here to see if I could do anything to save it. I staled my object to Colonel S. H. Fitch, on the boat coming up, and told him that I was going to see if I could employ some attorney in Santa Rosa who would try and save my property. He replied that the man I wanted was in Healdsburg, that he knew you well, having served through the Mexican War with you, and if you under- took it you would accomplish it or die try- ing. He at the same time remarked that the sfjualters were a set of desperate men, and that he expected they would kill any one who should attempt to stop their trespassing. I told him that his assurances were truly re- freshing, nevertheless, for a reasonable con- sideration. I would undertake it. After hav- ing fixed on a compen.sation, I said: 'Go back to San Francisco; you are afraid of these men, and within two weeks you will find your worse fears realized, or I will be in posses- sion of your land." "Judson returned to San Francisco, and I was in somewhat of a quandary how to com- mence my task, being fullj^ alive to the magni- tude of the undertaking; I was aware that about a month before my arrival in Healds- l)urg, a mob had taken and destroyed the field notes of Surveyor-General Tracy, gave him four hours to leave or hang, and that a like mob had chased Dr. L. C. Frisbie, he only History of tJic Bench and Bar of California. 603 escaping by being mounted on a fleet horse, and from the known character of some with whom I had to deal, I could scarcely hope to come out of the contest alive. First, I thought I had better commence in the district court and call to my aid a sheriff's posse comitatus, and again I feared that that course would in- duce the trespassers to think that I was per- sonally afraid of them; but a notice from them two days after my appointment, decided my course of action. "The notice which I received informed me ihal. if I dared to show mj'self in the red- woods, I should be hanged to the first tree. Accordingly, next day, I loaded myself down with iron and steel, got a horse, and started for the redwoods alone, having previously learned that their leader was a six-foot-and-a- half Irishman, a perfect giant, by the name of of McCabe, who would sally forth from his mountain hiding-place, come to Healdsburg, get half drunk, whip out the town, and return to the redwoods, where he had his family. On my approach to the redwoods, I inquired for McCabe's shanty, and on reaching it I found him seated on his shaving-horse making shingles. I dismounted, hitched my horse, advanced toward him, and said, "Is your name McCabe?' He replied in the affirmative. I added, 'Fighting McCabe?' 'They call me so sometimes.' I then said, 'Well, sir, I am that detested Judson's agent that you propose to hang to the nearest limb, and have come to surrender myself for execution ; my name is Norton.' He dallied a moment with his draw- ing knife, and then said, 'Suppose we carry our threat into execution?' I made answer that no doubt they had force enough in the woods to do it, but there would be some of them that would not be worth hanging by the time it was done. He then queried, 'Well, Norton, what do you propose to do with us?' I replied, 'Mack, I intend to put every devil of you out of the woods, unless you carry your threat into execution.' He was silent for a minute, then said: 'Well, you look and act as if you meant all you say.' I answered, 'I mean every word of it.' 'Well,' said he, 'in case I leave, how long will you give a fellow to get off with his stealings?' I said, 'How long do you want. Mack?' He replied, 'A week or ten days.' I asked, 'Is two weeks sufficient?' He replied, 'It is.' 'Will you leave at that time?' 'I will.' I said, 'That is enough between gentlemen.' Mack left according to agreement. "I then went out into the woods where the axes were cracking on every side, some chop- ping, some splitting rails, others sawing bolts : in fact, it was a busy place. When I ap- proached them I asked what they thought they were doing there, if they did not know they were trespassers? They wanted to know who I was and what business I had there. I answered, 'I am the agent of Egbert Judson, the owner of this land and timber, and I for- bid you to cut another stick, and intend to make you pay for the trespass already com mitted. They commenced to gather around me. using the most insulting language; one of them, pointing to a large limb on a spreading oak, said, 'We will give you just two minutes to get out of this, and, unless you are gone by that time, we will string you up to that limb.' I drew a revolver and cocked it, and told them to keep their distance, that I would kill the first one that attempted to advance. I then asked them to give me their names, as I intended to prosecute them, each and every devil. They gave me a laughable list, which I will not attempt to copy here. After inform- ing them that they were a set of cowardly scoundrels and not a gentleman in the crowd, I left them and returned to Healdsburg. "Johnson Ireland was the justice of the peace, and a firm, positive, honest man ; and being satisfied that I could trust him, I brought about a hundred suits, using all the aliases I could think of, placed the papers in the hands of an officer, with instructions to serve on all he could find in the woods, except my Irish giant, and to obtain their real names if possible. The actions were for trespass upon personal property, for taking and carry- ing away posts, rails, pickets, etc. I think the officer got service on sixty-two persons. The cases were set for hearing at 12 o'clock noon. The parties did not arrive in time, and I took a default against the crowd; but at 2 o'clock in the afternoon of the same day, as I was seated in my office (which was on the second floor over a store on West street), con- versing with a friend, I heard some one hal- looing on the street. I walked to the balcony and saw that the street was crowded with men. "Their spokesman called out, 'Well, old fel- low, there is a friend of mine up in the red- woods who wants to compromise with you.' I inquired his friend's name. He replied : 'D — n you, if you want his name find it out the way you did ours.' I said. 'It is very unkind in you not to give your friend's name, but as the business of the day is over with 604 History of the Bench and Bar of California. me. I will attend to it : 1 think, however, you are mistaken in your man ; it is not Norton you are hunting ; it is Surveyor-General Tracy, or Dr. Frisbie that you are after; but as you will not give me your friend's name. I will accompany you, two of you, or three of you, or I will go with your crowd ; or I will be fairer still. I will agree to come down there and whale any one of you so blind that your wife will not know you when you get home again. 1 know your kind better than you know yourselves.' Instead of rushing for me, as my friend had anticipated, they commenced gathering in knots, and at the end of an hour there was not one of them on the street. Thus ended their first and last attempt to mob me. "My next adventure was in removing squat- ters from the east side of Russian River. Jud- son had sent a man by the name of A. J. Soules with a flock of sheep on his own land on the Sotoyome Rancho, to pasture. The squat- ters (numbering sixteen families) went and removed Soules and the sheep from the grant, admonishing him that it would not be safe to return. Judgment in ejectment was ob- tained against those men in the federal court at San Francisco, but no one had dared to attempt to enforce it. Having been successful in drivjng the trespassers from the redwoods, Judson came to the conclusion that perhaps I might gain possession of his other land. After consultation. I directed him to send me a deputy from the United States marshal's ofiicc, with the writs of ejectment, which he did. We went over to the field of our new labors about five o'clock in the evening, having previously sent them notice of my intention to remove them unless they would enter into a lease, and recognize our title. We found them all at the house where we proposed to commence, all armed with knives or pistols. Over an hour was consumed in trying to get the party to sign a lease, but to no. purpose, xne evening was chilly, and I could not think of throwing a woman and small children out at that time of the evening. Accordingly. I told them that I would be there at eight o'clock the following morning to put them out. At the appointed hour we were on hand, ami found them all there. I again tendered the lease, which was refused. I cocked my re- volver, took my position in the gateway, and directed the marshal to throw the goods out of the house, which he proceeded to do. They made a demonstration as though they intended to make a rush. I warned them to keep back. The marshal got all out but the woman. He came to the door and said. T cannot get this woman out.' I told him to take my revolver and keep the men back, and I would attend to her. I walked in, found her seated in the middle of the floor, and said. 'Madam, it be- comes my unpleasant duty to remove you,' at the same time stepping quickly to her back, bending over and putting my hands beneath her to carry her out. She sprang to her feet, • exclaiming, T guess I can go out myself.' After the woman had surrendered the citadel, the man (whose name, I believe, was Weber) remarked that, if it was not too late, he would sign the lease. I replied that it was never too late for me to ameliorate the condition of my fellow-man, and handed him the lease, which he signed. We then went from house to house and all the occupants signed leases. Thus Judson was restored to his land on the old Sotoyome Rancho." The Russian River and Dry Creek valleys were covered by Mexican grants, which had been duly confirmed by the United States land commission, and patents issued thereon, and recorded. "Notwithstanding all this," the Captain's narrative proceeds, "the squatters in possession had their secret leagues all over the county, and forcibly resisted all efforts to dispossess them, and the law seemed to be entirely a dead letter; actions in ejectment were prosecuted to judgment; writs of restric- tion were issued and placed in the hands of officers, but resistance was made by armed force ; the military was called out — a requisi- tion for militia on one side, and Captain For- see mustering two thousand squatters on the other side. Parties would be evicted one day, and the next morning would find themselves in possession of the same premises they had been ejected from the day before. Two thous- and men had met and confronted each other in bloodless combat ; both parties marched and countermarched until the farce was played out. By express command of the sheriff I was ex- cluded from these wars, and the affair was finally left where it commenced. Though the fairest domain on which the sun ever shone, yet people sinuniod it. as tlu-rc was no title or undisputed possession. "Things were in this condition when Dr. L. C. Frisbie, of Vallejo, employed me to look after his interests in the Sotoyome Rancho. I took his business in hand, and succeeded in making some sales and getting along pretty smoothly for a few months ; but it became nec- essary to bring several suits in ejectment, which I prosecuted to judgment. One of them History of the Boich and Bar of California. 605 was against Riland Arbuckle, on a portion of ihe Sotoyome Rancho. and as he was a boast- ful, blowing fellow. I thought I would go for him first. The sheriff dispossessed the party, and levied upon a quantity of sacked barley, which we removed to the liouse for safety. The squatters said tlicy would not resist the officer, but tiial Arl)ucklc should be placed in possession again before morning, and tlial old Norton had better leave with the ^lu'riff if he knew what was good for him. 1. how ever, thought differently. My client was not there, and I had determined to try strength of nerve with them, and had secured the serv- ices of seven young men to aid me. We were all supi)lied with double-barreled shot-guns and plenty of ammunition. The sheriff had retired, and altout a dozen of the squatters lingered for a time. I had gone out to recon- noiter the premises, when they commenced talking very rough to the bo3^s. telling them that they had better leave, as every one of them would be killed before morning, etc. The boys were telling them that they were not there to fight, but merely to hold possession under the law». In the early part of the con- versation I had slipped up behind a large oal: tree where I could hear every word that passed, and at this juncture I sprang from my concealment and exclaimed, 'You are a bom- bastic set of cowards ; you have dared me to hold these premises ; now go home and rally your forces for your night attack; you will find "old Norton" at his post.' My boys all bustled up and told them to go or they would boot them, and finally bluffed the fellows from the ground ; but on riding off they called back that we would see them again before morn- ing. "We then made breast-works of the sacks of barley in the house, with loop-holes through the thin siding, and before it was quite dark I placed patrols up and down the road with instructions, if they should see the enemy approach in force, to retreat to our fortifica- tion and notify us; but if the enemy advanced too fast, they were to fire a revolver as a sig- nal and make good their retreat. About 1 1 o'clock I heard the discharge of a revolver, and the two outposts came rushing in and said there was a large company of horsemen rapidly approaching, i formed the connnand outside of the house, under a large laurel tree, where it was quite dark. I ordered them to drop down upon their faces on the ground. On came the horsemen, from eighty to one hun- dred strong. When they got opposite to us and about four rods distant. I ordered. 'Ready!" All the locks clicked audibly. I said. 'Reserve your fire till they attempt to cross the fence.' The horsemen wavered for a moment, then with a right-about-face made equally as good time in getting away as they did in coming. I was satisfied that we had not seen the last of them, and in consequence of this impression I kept a vigilant watch. Aljout 2 o'clock in the morning one of my sentinels came running in .ind said there was a large crowd creeping alone the fence. I ordered my force to keep perfectly quiet. I took my old rifle that I had had in camp, and skulked along the fence to within about a hundred yards of the fore- most of the approaching part}-, when I slipped out and fired a shot about ten feet over their heads. \t this there was another general stampede, and we were again in peaceable pos- session of the Arbuckle place. "I continued to eject the squatters from Frisbie's tracts, with greater or less resistance, until I had reduced the whole to possession. It now seemed to be the general opinion that I was the only one who could successfully cope with squatters, and Joshua N. Bailhache. as one of the Fitch heirs, or rather tenant by courtesy, having married Miss Josephine Fitch, had a large tract of land covered by squatters. and had made many futile attempts to expel them. They had become so well organized and so confident of their ability to forcibly hold the premises, that they actually paraded the streets of Healdsburg. both men and women, with music and banners waving, and seemed to think that if they could only get rid of Bailhache they would be secure in their homes. In accordance with this idea, they made a raid on him and forced him to secrete himself in the Raney Hotel. Seeing his dan- ger. I marched out with a cocked revolver in each hand, meeting the mob. and persuaded them that I was the man they wanted, and not Ba'lhache: but they came to the conclusion that they did not want either of us, and re- tired, still iiolding forcil)k' possession of his lands. Mr. Bailhache about this time discov- ered that he had business at Fort Yuma; so he moved his family to Santa Rosa and departed. ".\ few months afterward I received a letter and i)ower of attorney from Mr. Bailhache at lM)rt Yimia, giving me full authority to enter upon any and all his lands in Sonoma county, ;iiid expel s(|uatiers, etc. 1 commenced opera- tions under this power, but not until after I had convinced the sheriff that his was not 606 History of the Bench and Bar of California. much of an office anyhow, and he had agreed to turn it over to his under-sheriff in case he could furnish the necessary bonds, which I Ik-Hcvc were about thirty thousand dolhirs ; and I agreed to furnish ten thousand, in con- sideration of having the privilege of selecting my own deputy for Healdsburg. This was carried out, and I chose J. D. Bins, and adopted a new system of warfare. I put in teams and went to work hauling off the fencing from the farms on the west side of Dry Creek, thus rendering the land useless to the holders. This drove them to desperation. The teams had been hauling all day. and at evening when they were coming in with the last load for the day, as they were approaching Dry Creek, my team being in the rear with five or six men upon the wagon, my brother among the num- ber, two shots from rifles were discharged in rapid succession, and a bullet from one of them struck a Mr. Ferguson just above the knee, and running down the leg, shattered the bones in a terrible manner ; it was a death shot. My brother drove him to town as fast as possible, but he never rallied from the nerv- ous shock, and died the next day. "Until this murderous attack. I had not been thoroughly aroused, but after the death and burial of young Ferguson, I took a posse of ten men, all thoroughly armed, and went with them in person. Stationing a few outposts to prevent any further shooting from the brush, T commenced throwing out goods from the JKJuses and burning the buildings to the ground. In this way I went from house to house, until I burned down all the dwellings on the Bailhache premises occupied by squat- ters. They followed us up en masse, and at length one of them said, T would like to know who sets those buildings on fire ; I would make them smart legally.' I replied, 'What, you appeal to the law, who have so long trampled law and justice beneath your feet! You shall be gratified !' I said, 'J'm Brown, fire that house.' The house was soon in flames. I then said to the squatters, 'Now take your legal remedy.' Brown (a brother of Mayor Brown, of Santa Rosa) was indicted but a not. pros, was entered in the case, as the house was mine, and I having authorized the act; there being no property of others in it, nor no living being, under our statute, the act was legal. Some of the houses were good two-story buildings, but I treated them as I would have done a lot of rats' nests ; under the circumstances there was no alternative. "Although I had reduced the dwellings to smouldering ruins, the squatters continued to hang around, like the French soldiers around a burning Moscow, until the elements drove them away to the hills, where some of them rnit u\) tenii)orary abodes on the adjacent gov- ernuKnt land. In our attempt to keep the raiders from tlie different places, we had only been successful in gaining possession of a small portion, and in order to perpetuate my possession. I commenced repairing the fences, and on two or three occasions in the night they fired them. But I was ever on the alert, and discovered the fire in time to prevent much damage. My next effort was to find some one who would dare take possession of some one of the places. At last I found a man by the name of Peacock, a powerful, resolute fellow, who proposed to purchase a piece of the land which a man by the name of Clark had been claiming, and whose house had been burned down. He contracted and entered into possession, and guarded a fine lot of hay, a volunteer crop growing on the place. The hay had matured and he had cut and cocked it, but in the mean- time, contrary to my counsel, he had made great friends with and confidents of the squat- ters who had been evicted, and among other things told them that he was going to see my brother the next day, to get his team a bale of hay, and should be absent that night. I strongly opposed it, while he assured me that everything would be safe, but did not convince me. I was on the watch, and about 2 o'clock in the morning I discovered a bright light arising from the neighborhood of Peacock's hay. I rushed around, awakened Bailhache, Ransom Powell, and two or three others, and started for the scene of the fire. We suc- ceeded in saving about one-third of the hay. "On Peacock's return it was impossible to convince him that the Prouses had any hand in this, or that they knew anything of it. He continued his former relations wtih them for about a month after this time, having gone to board with them. One day a dispute arose at the dinner table, and the two Prouse broth- ers set upon him, one of them armed with something that the evidence afterwards dis- closed as being somewhat like a butcher's cleaver. They cut and hacked Peacock up in a terrible manner, so that for a long time his life was despaired of. For this offense I had Daniel Prouse sent to the penitentiary, and we continued to hold possession. The land being desirable farming land, others, seeing that our title could be maintained, commenced History of the Bench and Bar of California. 607 purchasing ; and thus Bailhacho was restored to his possession, which put an end to the squatter difficuUy on the Sotoyome Rancho." Like hazards continued to beset the intrepid attornej' for a long period. Once, while re- turning from serving some notices on default- ing tenants of General John B. Frisbie, of Vallejo, and W. H. Patterson, the San Fran- cisco lawyer, this occurred to him: "While jogging along on a gentle little mare, right opposite the widow Bell's old place, where there was an old watering trough and spring at a large redwood stump, sur- rounded by a dense growth of redwood sprouts, a shot was fired. I felt a concussion, and at the same instant my mare made a jump sideways, nearly throwing me from my sad- dle. I recovered myself and dismounted. "I saw the brush wiggle and shake, and made for the point. The party took to his heels, running through the thick brush and up a very steep hill, and I only got a sight of his back. He wore a bluish-gray coat and a low black hat. and was rather a short man, and that was all I could tell of my would-be assas- sin. I was unarmed, and had no wav of stop- ping him. On examination, I discovered that the bullet had passed through both sides of my vest, having entered the right side right in the breast, passing through my outer shirt, in front, and out at the left side. This was at a time when strangers thought us a set of desperadoes here, and there was but little said about it, as I did not wish to add to our rep- utation in that line. When I came in I showed it to Bailhache, D. F. Spurr, and, may be. two or three mohe. I still have the vest, and if this reaches the eye of the perpetrator of the deed he may congratulate himself on the fact that I could not recognize him." The narrative continues : "I then wrote to Frisbie and Patterson, and told them that in case I entered upon the haz- ard of attempting to manage the squatters, they must give me an unconditional power to survey, segregate, and sell all the lands ui)un such terms and time as I should deem prober, being accountable to no one for my actions in its disposition. They immediately sent me the power, which was communicated to the settlers in a very exaggerated manner, they being led to believe that I would eject them at any price. Whereupon their secret organ- ization met, I having two trusty friends in that organization, who hastened to me and communicated to me so much of the proceed- ings as in their judgment was necessary to preserve my life. 1 was told by them that it was determined in counsel that my death was essential in order to defeat the measures about to be carried into effect ; and they had adopted a resolution that if I ever showed myself upon the Tzabaco Rancho I was to be killed like a snake by whoever discovered me; and in addi- tion to this, they balloted to see whose duty it was to be my special executioner and hunt me out and kill me. These men begged of me, under the circumstances, not to come onto the grant. I fully comprehended the fact that the settlers were in a state of desperation, as we held one judgment over them in the sum of $10,000 obtained on injunction bond, mak- ing a total of $20,000; together with writs of ejectment against every one of them. "After due reflection, I resolved to "beard the lion in his den,' and to fight the devil with fire, and when I was all ready, I hitched my pony to the buggy, and started for the Tza- baco Rancho. After placing a quart bottle of old Bourbon under the buggy seat, and arming myself in case of trouble, I drove to the ranch, which is about six miles from Healdsburg, following the Geyserville road, and adjoining the Sotoyome Rancho on the west. I drove up opposite the house of one Captain Vessor. then living close to the line, and saw the old Captain in his yard hewing out a plow-beam. I stopped my horse, and called out, 'Captain Vessor, will you step this way ?' He dropped his ax, and came to the road ; when about five or six feet from the buggy he raised his spectacles, and recogniz- ing me, he instantly became as black as a thun- der-cloud. [ jumped out of the buggy, and confronting him, said, T am informed that you men liave in solemn conclave determined to shoot and scalp me if I ever came on this grant, and as shooting is a game that two may play at, I will commence now,' at the some time running my hand under the buggy seat The old Captain threw up both hands and commenced running backwards, exclaim- ing, 'Don't, don't.' "I'll be hanged if I don't !' said I, at the same lime bringing the whisky bottle to bear upon him. .-X. pleasurable sen- sation, after the most abject fear, wrought another change in the Captain, when he laugh ingly exclaimed : 'Oh, God ! you might have shot me with that long ago.' I then gave the old man a 'shot in the neck,' and bade him pet into the buggy; but I frankly told him tiial 1 was through joking and meant business; that for the present he was my prisoner, and must go with me. He very reluctantly com- 608 History of the Bench and Bar of California. plied, and I drove to Geyserville, only holding him hostage to insure my own safety. "At this place I met Dr. Ely, who I had good reason to believe was the brains and managing man of the squatters, ho being a man of intellect, and a fair-minded, reasonable man upon all subjects excepting the one at issue. I dismissed Vessor, 'shot' Ely. and took him in the buggy, and continued my jour- ney through the Tzabaco Rancbd. [ informed the doctor that I came uj) to sell them iheir lands, antl that 1 ijroiiosed to give every man a reasonable chance of paying for the farm 1 sold him. I was aware that the lands had been held too high ; that the owners were hon- est in their convictions of the value of the land, but were mistaken ; and for that reason I had refused to take the agency until they gave me carte hlaiiclic to dispose of them ac- cording to my own judgment. "But." he said. with apparent surprise, 'yoti dn not ])ro])ose to sell me my place?' 'Why not?' I asked. He replied, 'I have always heard that you said you would not sell my place, but had selected it for j'ourself.' 'That,' said I, 'is just as true as many other things you have beard about me. I am a W'estern man. and am anxious to see every man have his home, and will sell to you just the same as to the rest.' 'But,' said he. "if disposed to purchase, how can we? We are bankrupts; with the $20,000 judg- ments hanging over us, we can do nothing..' I told him that it was not necessary to tell me that they were bankrupts, for T knew it ; and cfiMtinned, 'It is not necessar\' to tell me that you arc a set of ruined and desperate men ; I know it. It is not necessary for you to say. in case I attempt to execute the writs of eject- ment which I hold against you, that these fair domains will be left blackened ruins, and that the inhabitants will retire to their mountain fastnesses and wage war against human na- ture at large, for I already know it. and in my present action have given due heed to it all : yet I am going to sell every man of you your farms, and as fast as you purchase I shall wipe the judgment out against the pur- chaser and again place you in the position of freemen.' "The doctor frankly admitted that if that was my intention, then I had been greatly misrepresented to them. I told him that, hav- ing unlimited power. 1 intended to be a bene- factor and not an oppressor of the people. The doctor took me at my word, rode through the settlement with me, and advised the set- tlers to purchase their homes, which seemed to them unusual advice. I notified them that. on the following Thursday, I would be at Cap- tain Vessor's for the purpose of going with them over every man's place, and ti.xing a price upon it per acre. "I was there at the time appointed, and met the entire settlement, and went over every place, fixing my price upon the land as I passed over, and to my surprise and satisfaction, everj' one of them thought that 1 had put a fair price upon his neighbor's land, but had got his a little too hi^li. The result was that every man purchased his farm within the ensuing six weeks, jjaying one-fourth down and getting three years to pay the lialance, at one per cent per month interest. And what was still more satisfactory, by the enlargement of time of pay- ment, all succeeded in paying for their farms, and thus ended the squatter war that had been ke])t up for (i\er se\-en years in the northern l)art of this county. "But before dismissing the subject I must say, in Justification of these men, that the most of them, in my judgment, were honest in their convictions that the claimants had no title to their lands, or if they had a title it was fraud- ulent : and that many of them today are among our most respected and prominent citizens. Our feuds are now looked upon as a feverish and disturbing dream, or treated as a subject of mirth, and as for myself, the most of the men who once wanted to see my throat cut are among my warmest friends." How the Captain came to be called Colonel, will now be explained. At the outbreak of the war of the Rebellion, in 1861, a regiment of volunteers was organized in the Captain's old county (Kane), in Illinois, where he had long before formed his company for the Mexican War. After electing the other officers, it was unanimously resolved that Cap- tain L. A. Norton, then in California, be elected Colonel of the regiment. On motion of Capt. P. J. Burchell, it was ordered that a copy of the record "be forwarded to Colonel Norton, with the request that he come home and take charge of his regiment." The Captain (or Colonel) received the noti- fication, but ])ressing duties, such as we have been contemplating, stood in the way of his going "home." In this connection the "History of Sonoma County" has the following: "We are informed by reliable persons that the northern part of Sonoma County is much indebted to the firmness and energy of the Colonel in keeping down an outbreak, as that portion of the county boasted a strong seces- sion element, and when it was asserted that History of the Bench and Bar of California. 609 no recruits to join the Federal army would ever live to cross Russian River, he organized and secretly drilled the Union forces, and was at all times ready to meet the threatened out- break. And when it was said that no Union flag should ever float in Healdshurg, he went immediately to Petalunia, purchased one, placed it on the top of his carriage, carried it through the country to Healdshurg. and nailed it to his balcony, where it continued to wave. When it was reported that a rebel flag was floating from the top of a high tree, between Santa Rosa and Sonoma. Norton made it his business to go down there, in open day, climb the tree and remove the flag. And we are informed that it is now in the possession of Mrs. Molloy. of San Francisco, the Colonel having presented the same to Dr. E. B. Molloy, now deceased." In 1874 Colonel Norton took his first real va- cation. He made it a long one, and spent it in travels over the Eastern states and Canada, and went as far South as Richmond, Va. He went by overland and rail, and a laughable in- cident occurred on the other side of the Sierras. A Mrs. G. was among the passen- gers, with her little son. eight years old. Her husband, an official of Alameda county, placed her and the little boy in Colonel Norton's care. Colonel Norton says : "When we arrived at the county seat of Humboldt county and when the cars stopped at the depot, the conductor walked through the cars and announced that we had twenty min- utes to exercise our limbs. I asked Mrs. G. if she would like to walk out, and she replied in the affirmative. 1 looked at my watch, and we walked to the court house, less than a five min- utes' walk, exchanged a few words with the clerk, and started back, when the whistle blew, the bell rang, and away went the cars. The woman was perfectly frantic, and screamed, 'My child! my child!' 1 consoled her as well as possible, telling her that I would telegrai)h to the next station and have the boy and bag- gage left. In the meantime the cars had gone out of sight and hearing. I had restored tlie lady to quiet, and was meditating a suit against the company for damage, when to my surprise the cars hove in sight, and some one on the back step was waving a handkerchief most fu- riously. We ruslied on and were soon on board again. "Then came tiie secret : The first day out, a small specimen of California's best produc- tion passed from my possession to that of tlie negro steward, with the understanding that he was to consult my best interests while it should be my good fortune to travel in his society; and when it was announced that I was left, he made a furious dash at the bell-rope, pulling it in two the first eflrort. He then rushed through the cars, reached the engine and yelled to the engineer, 'Yon iiius' go back! tivo ladies left, ami tzi'o suckin' babies on board!" Such an appeal couldn't be resisted, and the train backed up. 1 shall never regret what I invested in that nigger." He has pictured very pleasantly the varied striking scenes that presented themselves to his eye on this journey, and gives his impressions of the great men whom he met. But we pass by all these to make room for his account of a new danger, that threatened him in New York city, and how he escaped it : "On the second day after leaving Albany we landed on Manhattan Island, which con- tains the great storehouse of the world, and 1 was soon lost in the swaying and jostling masses on Broadway. I put up at the St. Nicholas, and was not long in finding out that in New York style costs as much as living. The next morning after breakfast I thought I would take a 'promenade down Broadway' and call upon mj- banker. I had not pro- ceeded on my walk more than two blocks when I was accosted by a gentleman who evinced great pleasure in meeting me. He rushed up furiously, seized me by the hand and exclaimed, 'How are you, Mr. Jones,' or some other name which I do not now remem- ber. I remarked to him that he had probably mistaken his man ; that that was not my name, and further that I didn't recognize him. 'Is it possible that I am mistaken?' he exclaimed. 'Is not your name so and so. and do you not live in Cincinnati?' I assured him that he hadn't guessed my name, and that I didn't live in Cincinnati. He begged my pardon, but re- marked that I must be some near kin of his friend, as he never saw two men look so much alike. 'My name is Jonas Collins,' he added; 'what may be your name?' I told him that was I lie iild thing.' and that he'd better be off'. He nnn.Lcle(I with the cn>\\cl and was soon lost to my gaze. "1 pursued my way. chuckling to myself on his discomfitiu-e, as I had from my infancy heard of New York sharps, and longed for the day when lliey would iiave an opportunity to try iheir skill on me. believing that there was one man ;il le.isl tli.it was invulnerable to their arts. I walked along in a very happy frame of mind, exulting over my victory, when a young man of prepossessing appearance and manner rushed from the throng of pedestrians and exclaimed. 'Captain Norton, how do you 610 History of the Bench and Bar of California. do! When did you leave San Francisco?' I took his extended hand, but told him that he had the advantage of me ; that I failed to re- member him. 'Why,' said he 'don't you know David, of the Western Union Telegraph Com- pany, of San Francisco?' 1 replied that 1 didn't remember him; that there were about a dozen of the boys, and 1 should fail to recog- nize any one of them. He said he knew me very well, having met me often in San Fran- cisco. I told him that I was pleased to meet him. or, in fact, any one from California. He said that he had just got in the night before; was putting up at the .\stor House, and asked me where 1 was going. I told him I was going dnun to the First National Bank to draw some money. He then informed me that he had to come on to New York for the purpose of settling a little matter; that his grandmother had died and left him a small annuity; that he had bought a ticket in a lottery, and was in- formed that he had drawn a prize ; that he was hunting the. place to draw his money; that it was somewhere near where we then were (he thought it was just around the cor- ner), and if I would accompany him he would go to the bank with me after he had got his money. I consented to do so. and we soon found the number. "We were admitted by a negro usher into the presence of the lottery man, who was seated behind a long table. He arose and David pre- sented his ticket. The man remarked, 'I sup- pose j'ou think you have drawn a fortune.' The young man replied that he didn't know how much he had drawn. The lottery man said, 'You have drawn $401,' and handed the young man eight $50 greenbacks and a ticket, saying, as he did so, 'This dollar ticket is all the percentage that the company has in this matter, and that ticket will be drawn at the large hall on Tuesday next.' 'I shall not be here on Tuesday,' said David, 'I am going right back to California.' I said, 'What do you care about the dollar ticket?' and he answered that he would like to know whether it drew any- thing or not. The lottery man suggested. 'Per- haps your friend will be here.' David turned to me and asked if I would be in the city on Tuesday. I replied that I should, and would see if his ticket drew anything, and report on ray return to San Francisco. "But the lottery man remarked that he had the scheme of the drawing and that if David preferred, he could have a private drawing then and there ; that they did so sometimes where men were going to leave the city. After an exhibition of his scheme, it was agreed that David should avail himself of the private drawing. Among other things it was ex- plained that where the party throwing the dice threw any number other than a prize number it was called a 'star,' and the party neither won nor lost, but would be compelled to rep- resent the ticket by putting up a dollar first, and then doubling the sum as often as he threw 'stars,' and that the money so put up was not forfeited, but at the end of seven throws the party putting up took all of his money so put up. together with his prize in case the ticket won. David threw a 'star' and 'antied' liis dollar; the second throw was the same, and he put up two dollars; the third throw was another 'star,' and he put up four dollars. Each time that David put up, the engineer of the game gave him a ticket. After the third throw David remarked tnat he seemed to be out of luck, and asked me to throw for him. I did so and won $8. He seemed pleased and requested me to throw again, he putting up $8 to 'represent.' I threw again, and won $400. The money was paid, $200 on each ticket, to abide the issue of the throwing; but we w^ere informed that we must come up $20 apiece. I was inclined to draw out, but Da- vid offered to put up for me, assuring me that he 'saw into it,' and that under any contin- gency we were to take down the money that we 'represented' with. I told him that I couldn't permit him to put up for me, so I put up the $20. I threw and it was a 'star.' I then proposed to the lottery man to let him keep the $200, which he claimed I had won and 1 would take down the $20 and quit. To this he wouldn't agree, and said that in case I quit I forfeited the $20. I then thought I began to 'see into it' myself, so I put up $20 more and again threw a 'star.' It then re- quired $80. I laid down a $100 greenback and threw — still another 'star.' The lottery man said that it now required $500 to 'represent,' and went on to explain. I told him it was unnecessary, as I understood it ; that I had the change. I took up the $100 bill and carefully laid it in my pocket-book, where I had laid the two twenties before it, and put my hand in my hip-pocket for the 'change.' Drawing out a six-shooter, I cocked it, and covered the two worthies, informing them that if they moved a muscle I would blow the top of their heads off. The lottery sharp cried out, 'Let me explain !' but I told him that it was my turn to explain ; that they had simply mistaken their man; that they had got me into their den to rob me, but hawks as they were their claws were too short to get away with a Cali- History of the Bench and Bar of California. 611 fornia chicken. Again admonishing them to keep their seats, for if they moved, it would make me very nervous and I couldn't be re- sponsible for what might happen, 1 kept them covered, backed to the door, bade them good- morning, and left, having learned that I was not so much smarter than the rest of the human family as 1 had thought myself, and that I, too, could be taken in by a Broadway confi- dence man." Returning leisurely to his home in Healds- burg, he resumed his profession. It was but to renew his old tamiliarit)- with the perils of practice on the frontier : "I was engaged on part of the plaintiff in the case of Bennet vs. Bennet, for divorce, having made an application for the custody of the children. The case was tried in Men- docino county, and it was necessary for four of us, the plaintiff, her two witnesses, and my- self, to go from Healdsburg to Ukiah, and that necessitated a two-seated conveyance. On ap- plication at the livery stable, I was informed that I could either have a thorough-brace or a light, two-seated carriage. I told them that 1 would take the carriage, but wanted a true, steady team, as there was no brake on the car- riage. Well, we went to Ukiah, made our showing, and got an order of court for the children, and were jubilant over our success. "As we were returning over the old toll-road on the west side of Russian river, the high hills on our right and a perpendicular preci- pice of thirty feet on our left, and a road-bed of about fifteen feet, winding up the mountain, on turning a bend, we suddenly met a team. The bank side was ours by right of way, but the other parties took it, throwing us on tlu- side next the precipice. They halted to let me pass (I was driving), but as I attempted to drive on I discovered the limb of an oak I ret projecting over the road, that came so far out as to fence me off, so that 1 could not swing in behind them. Coming to a halt, I lold them to drive ahead; but before they could understand what I wanted, my horses com- menced l)acking, and tlie wagon iJiilli-d nn tliem. inclining to run down the grade. I readily comprehended the situation and urged my horses to advance, striking them with the whip; but the more I urged them ihe faster they backed. At this place there was a bend in the bank, forming a horseshoe, the toe nni~ ning to the precipice. I saw that wc were destined to go over the precipice back foremost. As the grade got steeper in our downward de- scent, I whirled my horses, facing the preci- pice, and noticed a jack-oak growing below the precipice, whose branching, feathery top came up even with the top of the bank. It was now so steep that the horses could not hold the wagon, and I plunged them into the top of the tree (which was about eight inches in di- ameter at the butt), and down we went, head foremost — horses, carriage, tree and all. The tree bent down with the weight, but as soon as the horses, carriage, and passengers struck the bed of the creek below, the three passen- gers pitched out, and the horses being on the ground, the tree, thus released, sprang back, throwing the carriage clear and pitching me some fifteen feet, head foremost among the rocks. The next thing I knew the parties from the other wagon had hold of me, attempting to carry me out. I gained my feet, and, with their assistance, climbed to the road, where they got me into their wagon and drove me, with tiie rest, to MacDonald's Hotel, on the road, I believe about two miles. MacDonald got a mattress and spread it on a sidewalk running along the front of the hotel, where it was cool, and I was laid on it. "[ had been there but a few minutes when I heard some one say that Bennet, the defend- ant in our case, had run off with the children, and it was supposed that he was taking them to Oregon. When I heard this I asked Mac- Donald if he had any brandy. He answered in the affirmative, when I asked for a glass. After drinking it, I dictated dispatches to Chief Burke, of San Francisco, and to the Sacra- mento police, and all was a blank for some time. The next thing that I realized was that Dr. Pike was present (the local physician). Word was sent to Healdsburg for Dr. O. S. Allen, my family physician, and Dr. Molloy, my father-in-law. On the way down the man reported the accident in Cloverdale, and Dr. Weaver, from the State of Nevada, a former partner of Dr. Allen, happened to be there ; he said, Mf one of .Mien's iJ.itirnt-^ i-- hurt, 1 must go and see iiiin." Ihe rtsidenl pliysician of Cloverdale hitclied up his team, ;ind they came up. and two hours later, Drs. Allen and Mol- loy arrived, making five doctors in all . (Some will say that was enough to kill any man.) "They went to work in good earnest, gave nie a thorough examination, found that two iili> had been stove in near the backbone, that the i)oiiit of the left shoulder was broken, that my head was badly cut in several places, and full of gravel-stones, and that Ihe nervous sys- tem was badly shaken. My neck and all around the top of my shoulders assumed an inky blackness, but I had become entirely con- scious. Night was coming on, and they were 612 History of the Bench and Bar of California. desirous of getting me into the house. They attempted to move me on the mattress, and carry me in, but the instant they commenced raising me on the mattress the breath would leave me, and I would faint, the pain was so excruciating. They had to leave me where I was, and I was compelled to remain there with an awning over me for three days, when I called MacDonald to me and asked him if he had any wide boards about the place from sixteen to eighteen inches wide. He said that he had, when I asked him to cut off a piece seven feet long and bring it there. Some thought I was losing my mind, but he com- plied with my request. 'Now.' said I, 'nail a bracket on one end, four inches high.' He again complied. 'I^ow,' said I to Dr. Allen, 'carefully shove that board under my mat- tress, and let the bracket come up to my feet.' This was done. 'Now,' I continued, 'go to my head and raise the board.' I found that my plan was a success ; that lying on the stiff board I could be moved without any rack or pain. I lay at MacDonald's a week, when I was moved, with the aid of my board, to my home in Healdsburg, where I lay for nearly three months. "The doctors unanimously agreed that I would never entirely get over my injuries, but would be able to get around, and might sur- vive several years. But they were mistaken, as I have had occasion to try mj^ manhood several times since, and could not see that I had lost much of my former elasticity. "Subsequent to the foregoing event, there was a desperate attempt made upon my life ; I was seated in a chair, when the would-be assassin drew a cocked revolver, clapped it to my ear and fired. I saw the pressure of his fingers upon the trigger of the revolver, and throwing my head back and my hand up, the bullet crashed diagonally through my hand. I sprang to my feet and with my other hand reached for my revolver ; but it was in the scabbard, buttoned down. My assailant had a long navy revolver, and continued his fire at close range, the muzzle of his pistol never four feet from me during the fire. He continued to fire in the most excited manner until he had emptied his weapon, when I had succeeded in getting my revolver with my one hand. He then started to run, when I hastily fired as he was about to escape through a door. I fired a little too quick, and just barked his neck with my bullet. I then sprang forward and drew a bead on his back as he was running; but from some cause the hammer of my revolver came down between the tubes. I cocked again. and would have got him before he escaped from the building had it not been that a pre- tended friend sprang forward and between us. exclaiming. 'Here, Cap., take my pistol.' I subsequently learned that he too was in the plot to kill me. He merely took that position to save his companion in guilt. My assailant had attempted to get up a row with me in the morning, on some trivial matter, and on walk- ing from me, said significantly, 'I will see you again.' These words put me so far on my guard as to buckle on my revolver. I was afterwards told that the squatters had agreed that, if he would kill me, he should have $500. Well, I followed him up, he running and 1 pursuing until I got two more shots, but at long range, when I became so weak from loss of blood that I could not follow further. He escaped from the country, and was absent for something over a year. "This last occurrence left me in rather a bad condition, having comparatively lost the use of my right hand by a saber cut in the Mexican War, and now my left shattered by an assassin's bullet, left me crippled in both hands. And this combination of circumstances has clearly demonstrated to me that the old adage, 'Truth is stranger than fiction,' has been verified. But this was no secret ; the whole town of Healdsburg well knew of the affair, which occurred in the very place where this is written ; and there were over twenty persons in the room when the would-be murderer com- menced shooting. I lay for three months with my hand-wound, and some portion of the time in a critical condition ; but at last it healed, and I again continued my practice." Surely, our unquailing veteran of the war was not the quality of those alluded to by a great lawyer already quoted, who "decline those bright rewards that decorate the brave, and steal inglorious to the silent grave." What we may call his culminating personal adventure, is spoken of in his book without his usual mention of names. His lawyer-son kindly furnishes us with a fuller account, as follows : "Bird Brumfield was a gambler by occupa- tion, yet owned extensive landed interests in this valley. In personal appearance he was handsome and attractive, and he was noted for his dexterity with a revolver. Father had known him for many years, and, as the rela- tion of attorney and client existed between them, they had become reasonably friendly. Sometimes in the year 1869 Bird Brumfield and another man. I think his brother, assaulted a man by the name of Strong at Santa Rosa, History of the Bench and Bar of California. 613 this county, and while his companion held him, Bird Brumtield literally carv-ed Strong, inflicting fourteen different stabs, killing him on the spot. In some way, unknown to me at this time, Brumfield escaped punishment for this crime. On their first meeting after Brum- field's return to Healdsburg, father took occa- sion to characterize him as a cold-blooded mur- derer. Brumfield. stung by my father's remark and manner, told him that he would have his heart's blood for it, and warned him to arm himself. They met later in the same day. my father at the time being seated in an arm chair in a small room or office on West street, in Healdsburg. Brumfield suddenly opened the door, having his revolver drawn and leveled at the time. Father was sitting with his leg thrown over the arm of the chair, facing the door, his revolver being attached to a belt worn about his waist. Seeing that Brumfield had his revolver leveled at his head, father quickly shifted his head to one side and threw up one hand, while with the other he reached for his revolver. Brumfield's first shot ploughed through father's right hand, entering about the middle of the palm, shattering the bones and tearing the arteries in a horrible manner. Seeing that his first shot had not killed him and knowing full well my father's determina- tion, Brumfield evidently became nervous, for he fired five shots more in quick succession at a distance of not over ten feet from my father, and not one of them took effect. In the mean- time father kept his eyes fixed on Brumfield's and tried to draw his revolver from where it lay in the belt on his right hip. His right hand being shattered this was difiicult to ac- complish with his left. As Brumfield fired his last shot, however, father succeeded in drawing his weapon, and as Brumfield turned and dashed through the door, father took a shot at inm which cut the wood just over his shoulder. Quickly following him, father took another shot at his as he sped across West street, the ball narrowly missing its mark and burying itself in one cjf the wooden columns supporting the balcony of the Union Hotel, where until recently it was an object of com- ment and curiosity. Father followed Iiim on tlie run across West street, and tiu-ou^li sev- eral buildings until, exhausted by loss of hloou, he had to give up the chase, Brumfield escaping. They never exchanged shots after- wards, though Brumfield returned to Healds- burg subsequently. "I should add to the above that Brumfield met his death later on the very spot where he had shot at father, a man by the name of Willis Zane killing him with a gun loaded with buckshot. "Father continued in the active practice of law until within six months from the date of his death, when failing heallh prevented his continuing longer at it. He was known among the members of the legal fraternity as "The Fighting Lawyer of Sonoma County." Judge Temple, of the Supreme Bench, can verify much of this and could no doubt give you other interesting anecdotes of him had he the time and inclination." Colonel Norton was married four times. In 18.39. at it. Charles. Illinois, he made some money on a contract for cutting hay and be- came owner of thirteen town lots there. The next year at the age of 21, he married a Miss Fisk, daughter of an educated settler from Massachusetts — "a little, fragile woman, sick much of the time." His second wife was a Mrs. McKinstry, for whom he had procured a divorce in Pla- cerville. She was of "fine education and com- manding appearance," and had come from In- diana in 1850 with her first husband, Professor Webb, who died shortly afterward. The Colonel refers to her as "Mrs. E. W. McKin- stry." Such may have been her husband's ini- tials, but we suspect that he used inadvertently the capitals of a name distinguished in the judicial history of California, the eminent jurist not being related to the defendant in the divorce case, so far as the record discloses. Colonel Norton was faulty at times, in recall- ing names; for instance, in alluding to Gen. J. W. Denver, with whom he says he became intimately acquainted, he writes that the Gen- eral was then "smarting under the effect of tlK' duel between himself and young Nelson, rditor of the Alfa Califonua. which resulted in the death of the latter gentleman." It was not Nelson, but ex-Congressman Ed- ward Gilbert, who was editor of the Alta, and who fell in a duel with General Denver. Mrs. Webb— McKinstry— Norton died at the end of four years after her marriage with the Colonel. On September i, 1865, the latter mar- ried Miss Minnie Molloy, daughter of Dr. E. I'.. Moll(.y. of Healdsburg. She died after six years, le.iving him three children. She was educited well, "was wholly domestic in her nature, and looked upon the happiness of her husband and children as her only aim in life." On the 14th of January. 1872, the Colonel married the daughter of J. E. Turner, of Sacra- mento, "who has proved," so he wrote, in 1887. "an excellent mother to my children, 614 History of the Bench and Bar of California. which is the kindest thing that can he said of a step-mother." Colonel Norton loved poetry and wrote some verse. Orson Hyde, in a letter to him, which has been preserved, dated February 28, 1856, uses these words : "Indulge me while I quote a poem illustrative of what I have written — especiallj' as the poetic organ stands pre-emi- nently developed in the cap-stone of your own superstructure." Colonel Norton died at Healdsburg on the i6th of August, 1891, leaving three children, Mary Elizabeth Nevin, Edward M., an attor- ney-at-law, and Lewis A., the last named being of late years a deputy in the office of the sec- retary of state. The Colonel accumulated a handsome estate for his district, worth easily a hundred thous- and dollars. THE EDITOR. SOME OF THE STRONG MEN ^OF TODAY .^ W. H. L, Barnes ilia & eSla (& cib cS> c& {Sat^aiSa'M' HISTORY of the BENCH anrf BAR of CALIFORNIA ejg«^!Jp^«j9«Jie^e;ip managing clerk, remaining in that position and continuing his studies for four years. William H. L. Barnes and Joseph H. Choate, the present United States Ambassador at the Court of St. James, made up their minds at the same time to commence practice. They formed a partnership, which had continued only a short time when the war hrokr nut, and Mr. Barnes went into the army. He was on General Fitz-John Porter's staff. Con- tracting sickness in the field he left the serv- ice and came to California. This was in April, 1863. He had no idea of remaining here, his object being to regain his health; but, bringing a letter from Charles O'Conor to the Hon. Eugene Casserly, he was invited by the latter to a business connection, which he concluded to accept. In August, 1863, commenced his partnership with Mr. Casserly, which lasted until Mr. Casserly's election to the United States senate in i86g. General Barnes quickly obtained recognition from the profession and the public as an ac- complished advocate. His manly presence, pol- ished address, quickness of perception, dili- gence in business and excellent knowledge of the law, won him speedily many valuable friends and clients, and placed him abreast of his ablest brothers. He is gifted with rare powers of conversation. Being a willing talker, his wealth of speech and his stores of infor- mation are constantly exhibited, his talk be- ing sprightly and engaging, always sensible, and usually flavored with the genuine extract of mirth. He is a most versatile man, scholar, linguist, actor, author, artist, lecturer, law- yer. In the line of his profession, General Barnes has always maintained a very large busi- ness. In January, 1874. in the United States Cir- cuit Court, General Barnes was called into what is known as "The Crusader Case," be- ing the trial of the officers of the ship Cru- sader on charges of cruelty to their sailors. The crew of that vessel were Scandinavians, and the Scandinavian Society of San Fran- cisco, having a large membership, took up the cause of the outraged sailors with vigor, employing General Barnes to assist the United 618 History of the Bench and Bar of California. States District Attorney to prosecute. After a long trial, the accused were convicted. For his masterly conduct of this case. General Barnes was knighted by Oscar, King of Swe- den, who sent him the usual patent and jewels. There is one advantage possessed l)y Gen- eral Barnes which makes him feel perfectly at home in cases like that just noticed. It is his familiarity with the structure and furni- ture of vessels, and with the terms mostly used at sea. He knows as much as the aver- age ship captain does about hailliards and fore- royals, and studding sail-booms and main- cross- jack braces, and lazarets, and jib down- hauls, and mizzen tops, and leech lines, and jib sheet spreaders, etc. He knows every sheet, stick and rope of a ship. He did not derive his nautical lore by fol- lowing the sea, but owing to his fondness of the sea. He has been an enthusiastic yachts- man from his vouth, and has studied marine irchitecture, a most beautiful miniature speci- men of which adorns his office. General Barnes was leading counsel for the widow of the rich, eccentric, pioneer lawyer, Horace Hawes, and succeeded in breaking his will. He received a fee of $5o,ooo. This was in November, 1871. For his connection with the Sharon case see the article thereon. In the domain of art he is what is called "a wide liker." His father took him from the easel to send him to college. He is a musi- cian, an ardent lover of the "concord of sweet sounds." and plays with skill the piano, cornet and other instruments. He speaks French as fluently as English, and is accomplished in Latin and Greek. He is, too, an ambidexter, the only true one whom we have met at our bar. His offices are sumptuously furnished, and his library contains five thousand law books and two thousand miscellaneous works. We asked him once who were his favorite authors. "I like all authors, and don't know which I like best," he replied. General Barnes in court attracts the gen- eral eye. His arguments are logical, his lan- guage chaste. Having a good voice, a fine presence, precise ideas and a lively manner, he always creates a good impression and leaves a pleasant memory. He is most ef- fective before a jury. While calmly appeal- ing to their reason, he is constantly throwing off witticisms for their entertainment. Al- though he sometimes addresses juries at great length, he is never tiresome ; he never permits their interest to fiag. the play of '*Solid Silver" was written by General Barnes during a period of four days, when he was detained at home by sickness. Receiving a visit at that time from the late \\ . C. Ralston and the tragedian McCuilough, he showed them the production and they ex- pressed their gratification. McCuilough placed it on the stage in San Francisco, and it was received with favor. It was afterwards pro- duced in many of our Eastern cities and in Australia. From the sales of rights to per- form it the General received about $3,500. He has a brotherly feeling for great actors and cultivates their society. He was a stockholder of the old California Theater Association, of which enterprise he was a zealous projector. He was President of the Mercantile Library Association in 1865. He was the most active worker in the enterprise of erecting a struc- ture worthy of that institution and credita- ble to the city. There was no money on hand. "We put it up on gall, on nothing else," said he one day, in alluding to it. Then came the great lottery, which saved it. The General's, connection with the Mercan- tile Library of San Francisco, and his valua- ble services rendered to that noble institu- tion are gratefully remembered by our people. When Murphy, Grant & Co. were pressmg a large claim against the association. General Barnes and the late R. B. Swain met in an unfinished room in the new building, and de- liberated unon the crisis, over an old flour barrel filled with lime. It was settled upon as a happy suggestion that the General should appear before the footlights. "I'll play." said he ; "I think I can do the business." He went to Lawrence Barrett, lessee of the California Theater, and revealed the result of the confer- ence. Barrett "stood in." He suggested Ham- let, and Elliott Gray in "Rosedale. " The General said : "I'd rather tackle "Rosedale," and that play was adopted. The seats of the theater for the night of the General's appear- ance were sold at public auction, no seat bringing less than five dollars, except those of the gallery. When the night arrived the theater overtlmvcd with the mind and fashion of the city. The performance was a success, and won plaudits from the critics. The Gen- eral's voice was good, his conception correct, his playing spirited and his large and fault- less figure showed to fine advantage. The net receipts were $5,240. which paid off all the indebtedness of the library. In the summer of 1897 the San Francisco F.xa miner gathered from week to week what John D. Bkknell History of the Boich and Bar of California. 619 we may call the ruminations of thinking men about their boyhood days. When its repre- sentative called on General Barnes, he de- lightfully mused as follows : "When I was a boy That carries me through many long years, and over many miles abundantly wearv. What did I like best to do when I was a boy? Though a native of New York, my childhood and early youth were passed in Springfield, Massachusetts. Have you ever been there? If not, let me tell you that it always was and is the county seat of Hampden county, through which runs the beautiful Connecticut River, and is the head of its navigable water. In my time it was hardly more than a village, a quiet, primitive sort of place, inhabited by the best of New England people — families whose names went back to the Indian wars, colonial life and rich in tradition — a sturdy, laborious, God-fearing folk that rose early, worked hard, and wcp.i l:> bed when the nine o'clock curfew rang from the steeple of the rigid and unbeautiful Uni- tarian church. It was an ideal home for a country boy. There were splendid hills for coasting, and broad sheets of river ice for skating in the winter, safe water for sailing and swimming in summer, plenty of brooks and small tributaries where trout abounded ; glorious chestnut trees that showered their brown nuts in the early fall ; forests of ma- ples, whose purple and crimson and golden drapery was built by the early frosts and shone in the hazy Indian summer ; multitudes of butternuts, rude of husk, but sweet of meat that together feasted the eye and satisfied the most viracious api)etite. I was a hcaltliy, hearty, robust boy, and I coasted down the long hills and skated on the river, wctU in swimming almost as soon as the ice melted, waded the streams to catch the trout, sailed and rowed, hunted the hills for partridge and the small game of the country, played truant as often as I dared offend my various peda- gogues, and somehow or other acquired infor- mation enough of Latin, Greek, and niathc- niatics lo squeeeze into colk-ge. 1 iiad a happy home, a tender mother, an indulgent father, who loved study and athletic amuse- ments, and let us do much as we pleased, so long as there were no striking violations of New England boy-home law ; and tlioiigii 1 used to get a whipping pretty nearly every day at school I never received a tillie of the corporal attention 1 deserved at home. I liked everything in nature, all exercise, all games, including baseball and football— not the scien- tifically murderous football of today, with its systematized savagery, nor the play-to-rule baseball of today, but they were good, hot, honest games, played with a will, not often with temper, never with injury. My father was a capital reader, and many an evening we had with Longfellow and Holmes, with Cooper and Irving, and, chief of all, dear Charles Dickens ! My favorite books were "Thad- deus of Warsaw" and "Nicholas Nickleby." The "Curiosity Shop" came out in numbers, and we waited for them with wonderful and tender interest. When that came which told of the death of little Nell, so far from the friends who were searching England for her, and the grandfather, I remember how my dear father's voice faltered, and at last ceased as he covered his loving face with the paper, and we all cried together and mourned her touch- ing death. Ah ! those were dear, old, simple, innocent days — days without sorrow and nights of peaceful rest, days when I loved every- body, believed in everybody, found joy in mere breathing and hugged all nature to my careless, laughing heart. Nothing like that boy's life, believe me, in kin or degree, have I known since then. I hope I shall go back to them mf)re and more as I grow still older, and die babbling of the green hillsides and the shining waters of the Connecticut val- ley." JOHN D. BICKNELL. This worthy l)ar leader of Los Angeles made an e.\tenx months. He then went to Santa Cruz, and practiced there for a year and a half. He tried his first case there before Hon. S. B. McKee, District Judge. He was at the San Francisco bar, 1867-1870, in association with D. P. Barstow ( Bar.stow & Garber), with offices in the Montgomery block, and residing in Oakland. He then had a short career in the State of Nevada, which was crowned by a period of service on the Su- preme bench. He was elected to that high place as a Democrat, in November, 1870. He took office in January, 1871, and served until November 7, 1872, when he resigned. His as- sociates on the bench were two men of dis- tinguished legal attainments, B. C. Whitman and J. F. Lewis, both of whom have been dead many years. Returning to this State, Judge Garber resumed law practice at San Francisco in partnership with Colonel Harry 1. Thorn- ton (Garber & Thornton), which lasted from 1874 to 1880. Mr. Thos. B. Bishop then cnlcrcd the firm, which continued as Garber, Thornton & Bishop, until 1SS7, when Colonel Thornton withdrew, it was during this period that ex- Chief Justice John Carrey remarked to us that this was the strongest law firm in the State. The firm continued as Garber &. Bishop until 1890. It then became Garber, Boali & Bishop, and so remained to 1895, although Mr. Chas. S. Wheeler was a partner from 1893. in 1895 the firm was dissolved "by mutual consent." Judge Garber united with his cousin, ex- Superior Judge E. R. Garber, and estab- lished the firm of Garber &. Garber, Judge John H. Boalt opened an office by himself and soon retired, while Messrs. Bishop & Wheeler continued practice under that style, Messrs. Ludwig M. Hoefler, Guy C. Earl and William Rix being associated with them. E. R. Gar- ber died in 1897. Since early in 1898, Judge Garber's associates have been Hon. Harry T. Crcswell and Joseph B. Garber. (Garber. Cres- weli & Garber). in the summer of 1899, tlie firm publishing this History sought to obtain the judgment of the profession throughout the State as to who were the twelve ablest members of the San Francisco bar then living ; and to this end sent out printed slips to all the attorneys of the State, requesting that twelve names be writ- ten hereon, in the order of merit from the point of view of the subscribing voter. The "returns" were unexpectedly light, but per- haps heavy enough to serve as an index of the general estimation. The country vote slightly exceeded that of San Francisco. The names leading for the first place were, in the order of preference, John Garber, Garret W. Mc- Enerney, D. M. Delmas, E. S. Pilisbury. Thos. I. Bcrgin and Thos. B. Bishop. The last two were tied. Mr. Pilisbury was fourth in the line. Mr. Delmas a little above him, and Mr. McEnerney a little above Mr. Delmas. Judge Garber's vote exceeded the combined strength of all tiie other gentlemen named, and was nearly one-half of the total returned. His San Francisco, or we may call it "city vote," if Los Angeles does not object, was much larger than his country vote. Mr. Delmas' vote was three-fifths from the city. Mr. Mc- Eiu-rncy's vote was equally divided between city and country. riie (jualities of mind displayed by Judge (barber in forensic discussion are pre-eminently those of strength and clearness. He seeks to convince Iiy his learning and logic — not to daz- zle by rhetorical pyrotechnics. His legal learn- ing is extensive and accurate. He has read .111(1 mastered overv decisiiMi which can tiirow 630 History of the Bench and Bar of California. any ligln uiH)n ihe subject in hand, and his powers of analysis are such that an adjudica- tion which upon the surface may seem to be antagonistic to his position, will be shown by iiim to be entirely consistent therewith. In other words, his knowledge of legal princi- ples obtained through profound study of the reasons upon wliich judges have based their decisions, coupled with his capacity for per- spicuous statement and skilful handling of analogies and illustrations, has placed him among the leading lawyers of the United States. Besides the iniellecmal qualities which we have mentioned, he brings to the support of his cause, those powerful auxiliaries, honesty and sincerity. The judge who listens to him places entire confidence, not merely in his learning and capacity, but in his desire to state fully and fairly the law and facts of the case — meeting always the requirements of our code, which demands of the lawyer that he shall "employ, for the purpose of maintain- ing the causes confided to him. such means only as are consistent with trulli. and never seek to mislead the judge or any judicial offi- cer by any artifice or false statement of fact or law." (C. C. P. 282.) Hon. James D. Thornton, ex-Justice of the Supreme Court, has kindly sent us the follow- ing from his pen relative to Judge Garber : "John Garber was born at Staunton, in Augusta county, Virginia, and is about sixty- seven years of age. He commenced active business life as a civil engineer, studied en- gineering at the University of Virginia, and was then employed under Charles Ellet, an able man and distinguished in his profession as engineer. Mr. Garber's first employment in that capacity was on the Virginia Central Railroad, which ran from Richmond to Staun- ton, passing through Rockfish Gap in the Blue Ridge. At the university he graduated in mathematics, Latin, chemistry, natural phil- osophy and modern languages. After pursuing his calling as engineer for about two years, he commenced the study of law, was admitted to practice in Virginia, and soon afterwards came to California. He lived and practiced law in Nevada City, California, and went from that place to the State of Nevada, and followed his profession in Austin and Pioche. He made his mark as a lawyer in that state. He became a Justice of the Supreme Court of Nevada, and was an able and useful judge. He remained on the bench about two years, then resigned and came to San Francisco, where he took a high stand in his profession and argued the most import- ant cases. He was successful in every way, in winning cases and in accumulating money and property. Judge Garber is able in all kinds of cases. 1 do not know about admiralty law, but am confident that if he turned his attention to it he would excel in it. He is profoundly grounded in legal principles, learns all kinds of law with great facility and rapidity, and I have no doubt that he would take a high rank in the courts of Westminster if he ap- peared in them. As a speaker his is the eloquence of sound argument. His diction is vigorous, apt and appropriate. His manner in court is dignified, decorous and easy. He seems perfectly at home, and is always respectful and courteous to court and counsel. He excels in cross-e.xamination of witnesses. Colonel Harry 1. Thornton told me that Jtidge Garber was the best cross-examiner he ever saw. He is always prepared in Ins cases. The rules and principles applicable to them seem to be as familiar as the way to his office or the courts. Without disparagement to other able members of the San Francisco bar. I class Judge Garber among its leaders, if not as its leader. That bar may well be styled able and learned. 1 say this, after a knowledge of its members for a space of more than forty-five years. Judge Garber seems to have explored the foimtains of the law, as well as its streams and rivulets. Such is his knowledge of the law. that to solve the intricacies of a case is to him no difficult matter. He has been and is now a great general reader of literature, history, poetry and the leading works of fiction. His conversation is bright, interesting and instructive; few men are more entertaining in their talk. lie is a man of high character and a worthy citizen. He is a Democrat in politics, of the gold wing of the party, and is always ready to give good reasons for his i)olitical views. He is a great mining and corporation lawyer. As a mining lawyer he has no superior. In all the departments of law he has studied he stands in the first rank for attainments. Judge Garber married in early life a daugh- ter of Judge John White, of Alabama, who was a prominent citizen and distinguished law- yer. He has several children. His eldest son, Joseph Baldwin, is his partner, as is also Harry T. Creswell, Esq. The firm is a strong and successful one. i [ Wm. F. Herrir, History of the Bench and Bar of California. 633 WILLIAM F. HERRIN. Modern conditions have so recreated the pro- fession of the law as. in eiYecl, to give it a new character. The development of transportation, the growth of industry and of commerce, the rise of that great agency of progress, the cor- poration — these things which have so stimu- lated the energies of the world, multiplied its wealth, and specialized its life, have wrought a truly amazing evolution in the trade of the lawyer. The legal practitioner is no longer a mere bookish prig or a master in the chicane of the criminal court, or a bustling head clerk. He is no longer either Quirk, Gammon, or Snap of the city bar, nor the loutish "squire" of the rural districts. On the other hand, the modern lawyer is essentially a man of affairs, in professional association with the vital things of the effective world. His chief func- tion is that of counsellor and guide to the so- called practical men who are doing the world's work in its organized departments. He has all the professional learning and all the profes- sional .spirit of his ancestral type, the old-time lawyer, and he has added to these qualifica- tions knowledge of the practical things, a de- veloped business judgment, and the balance of the man of the world. We are speaking of the modern lawyer in his best development, and we have in mind Mr. William F. Herrin, the general counsel of the Southern Pacific Railroad Company. It is given to some men of exceptional fortune to sum up- in themselves and to personify in their own characters the spirit of the times they live in. and of the things with which they have to do; and Mr. Herrin is nne nf these rare men. The tein])er df the nnxUrii world is his temper ; the force of large con- ditions finds in him a corresponding force. As a lawyer, strictly speaking, he has the weight which comes from a profound study of legal principles, combined with a j)rofoimd confi- dence in the working out of results in conform- ity to principles .\s an administrator he has the promptness and the resolution which conn' from absolute reliance ui)on his own judg- ment, from what may i)e lernud the h.ihil of si:ccess, and from the teui])eranunl;il e.ilni which no transient motive ever for nuv mo- ment disturbs. "It is no accideni thai I lirrin is where he is," said a very proniinciit r.iilroad official recently. "Our peoi)U-. in scrlsing a chief counsel some years hack', ni.ule ;i cold blooded inquisition for the best conibin.ilion of legal knowledge, business judgment ;nul administrative force in California. A half- score of names were suggested, but only one was seriously considered— that of William F. Herrin." "Have you come all the way to New ^■ork to talk to me about this matter?" asked the late Mr. Huntington of a visitor a few days before his death. "Go back home and talk it over with Herrin. He's the levelest- headed man in California, and whatever he ad- vises that [ will do." It is natural to feel an interest in the personal and professional history of a man so reniark- al)le for his success and for the confidence which he inspires. Mr. Herrin came from the Southern and Western stock from which also came Jackson, Lincoln, Grant and Mc- Kniley— from the old American stock, strong ui its inheritance of English character and tradition, with a dash of Scotch-Irish to quicken the fancy and put iron in the blood. He was born in Jackson county, Oregon, Aug- ust 7. 1854. His early youth was under the double discipline of a good home life and of wholes(jme labors. At sixteen he entered the Oregon State Agricultural College at Corval- lis. maintaining himself by workmg in the harvest field during vacation time. From Corvallis he went to the law school of Cumber- land University, in Tennessee, from which he graduated with honors. Thus early — for he was n(jt yet twenty-one — the qualities of per- sonal judgment and of personal courage as- serted themselves, for in selecting his place to make a start he chose the metropolis of the Pacific Coast. To San Francisco he came, with fewer dollars than there are days in the month. an absolute stranger. It was a struggle, of course; but it was a struggle in which there was never any doubt about the outcome. A yotuh disciplined to labor, used to self-sup- port, without vices, willing to live in the hinnlilest way. eager to work, and willing to ^er\c, grasping .it the smallest opportunities and making the most ul each — first a minor clerk in the office of Hon. Clarence Greathm'jr ; soon .Mr. (ireathouse's confidential assistant next a junior partner in the firm of Stewart \- \;inclief (Senator William M. Stewart and tlu- late Judge Peter Vanclief) ; next a potent ti.uiirc in large litigation; next chief counsel t' ir ihr ll.ink of California and for other large enrpor.itions ; at thirty-nine chosen by Collis I'. Huntington as the general counsel of the Sonihern Pacific Company, and thus the fore- niosi ni.ni in the professional life of the Pa- cific Coast. It is a record of such distinction 634 History of the Bench mid Bar of California. as has not been surpassed in the professional life of the country. There is no simpler, less affected, less "puffed-up" man than William F. Herrin. He takes small time to consider matters personal to himself. He is today just what he was as a farmer's boy and as a student — plus the wis- dom of an eventful life, the poise of experience, and the authority of high achievement. He is as painstaking today as in his first case, and as careful of small things as of great. It is quite incidental that Mr. Herrin has come to be a man of very considerable wealth ; for it is impossible that one of such large earning power, combined with business discretion, should not thrive. But it is as a lawyer rather than as a capitalist that he is known and con- sidered. He lives in dignified elegance — a man of family (Mrs. Herrin is a daughtei- of the late Judge Vanclief), a man of supreme success, and at forty-six still a growing man. One who is familiar with Herrin's career as a practitioner and administrator has reviewed his methods of work. Says this writer, "He neither shirks the smallest duty nor does he shrink from the most stupendous task . . . The fact that he may distribute the work of his department never seems to suggest the idea of divorcing himself from a broad under- taking, and where the work has been portioned out he more than likely has anticipated every point his subordinate would be likely to en- counter. . . . He would have made a great banker or railroad president or surgeon. . . .There is a combination in his character most contradictory and unusual for he is a man of broad policies, and yet a man of details, and these two traits seldom come together in one individual. Mr. Herrin is not given to super- fluous words, nor to superfluous men." Quoting from declarations made with refer- ence to Mr. Herrin by others the same writer says, "A prominent member of the bench once said: 'Herrin never trusts to his luck or to his genius to win his cases. He comes into court tlioroughly prepared to try his case. In argument I have heard him anticipate his ad- versary by stating the strongest points against his own position, and then heard him tear that argument to shreds.' When he enters the court-room he is as familiar with his adver- sary's side of the case as he is with his own." Another striking testimony to Mr. Herrin's strength before a court comes from a member of the Inicr-slate Commerce Commission. His recent appearance before that body brought from one of its members this warm encomium: "We have had before us probably every promi- nent cornoration attorney in the United States, and my associates agree with me that your Mr. Herrin is the ablest of them all. He knows his case thoroughly; he does not irritate the court nor badger witnesses ; he cheerfully con- cedes points that other men would be apt to (piarrcl over, without purpose, but he picks the weak points of the other side, and exposes them in a way that is as instructive to the court as it is annoying to his opponent. "In his connection with the Southern Pa- cific Company and the multitude of allied cor- porations he has brought a loyal and untiring spirit coupled with a grim determination to get at the root of things. When he entered the de- partment as its chief, he began by carefully mastering every detail of past operations ; and they were many and most perplexing. Within six months he had every essential detail well in hand ; then he commenced his system of pruning, and with the deliberation of a sur- geon, he began to eradicate things he did not approve and coolly cut off what appeared to be the most vital portions of the department. He did not stop until the task was finished, although the doing of it must have been any- thing but pleasant. He then began a system- atic rebuilding along lines in harmony with his own views until now the organization is well nigh perfect. . . . There is no beat- ing of drums accompanying railroad litiga- tion, no long list of regularly retained attor- neys at extravagant salaries, but every lawyer of ability in the State knows that he may be employed at any time in the company's liti- gation. Ihe claims department and the tax department have been added to that of the law, and while giving personal attention to all of these, there is probably not a branch of the railroading, from construction to operating, that has not received his careful attention and investigation. He understands all the whys and wherefores of freight rates and the rules that govern their making." This same writer sums up Mr. Herrin's character in the following words : "He is a man of indomitable will, tireless energy and rare intuitive powers. He is broad of vision, yet scrupulously careful as to details. His capacity for work is illimitable. He has a head for organizing, and setting out to per- form a task he may be trusted to keep at it uiUil the work is done and well done." ^. H. Lloyd History of the Bench and Bar of California. 337 R. H. LLOYD. In this gentleman the California bar pos- sesses the most eminent Mason in the United States — the most exalted Knight Templar. He was elected Grand Master of the Grand En- campment at the triennial conclave held at Pittsburg. Pa., in October, 1898. Accordingly, the office of the Grand Master is in San Francisco. The next conclave, when his suc- cessor will be chosen, will be held at Louis- ville. Ky., in 1901. Mr. Lloyd impresses the stranger as a typi- cal American. If a person not informed on the subject were told that he was born in any part of tne LTnited States, north, south, east or west, he would readily accept it. If he heard that Mr. Lloyd was an Englishman, he would doubt it. If assured he was an Irish- man, he would say, "That can hardly be." We have asked Irishmen to guess at Mr. Lloyd's nationality. No one ever replied, "Ireland." Mr. Lloyd was, however, born in Ireland, of Irish parents. He came to California in boyhood — away back in the early fifties. He began the study of law in the office of Colonel James, a noted criminal lawyer ; then he was in the office of John S. Hagar, who had been Judge of the Fourth District Court, and was afterwards LTnited States senator. He worked industriously for both James and Hagar, go- ing errands and copying law papers. He was an ambitious, hearty lad, and happy when oc- cupied with honest work. ■ A few days after he had entered Judge Ha- gar's office, he had occasion to tell the Judge tliat a new coal scuttle was needed. "Gn to Snooks," said Hager. Young Lloyd looked up at the Judge as if hurt. He thought his employer was making sport of him. Now. Snooks was a plumber close by, and his sons are still in the business in 1900, and when Judge Hager, seeing Lloyd's dejection, told him where the place was. it was all right : he went and got the scuttle. (He told us of this in 1868.) Mr. Lloyd was educated in Snn Francisco. In 1857-58 he worked and studied in the law office of McDougall & Sharp, at 625 Merchant street. He was admitted to the bar of the Su- preme Court in 1859. The next year he held forth as an attorney-at-law, having an office with McDougall & Sharp. In 1861 llic funi of Mc- Dougall, Sharp & Lloyd was establislicd. Gen- eral McDougall, on his election as United States senator, withdrew from the firm, in 1862. and Sharp and Lloyd continued together until the beginning of the year 1876. They then separated, remaining good friends, Mr. Siiarp dying not long afterwards. In 1876 Mr. Lloyd formed a partnership with Fran- cis G. Newlands. In 1880 William S. Wood joined these gentlemen, and the firm of Lloyd, Newlands & Wood existed for some two years, when Mr. Newlands removed to the State of Nevada to enter upon a long political career. Mr. Lloyd and Mr. Wood, under the style of Lloyd & Wood, are still associated after tlic lapse of eighteen years. Mr. Lloyd was naturalized at San Fran- cisco in 1856. When the first registration act was passed ten years later, he registered as a voter, in June, 1866, as being a native of Ire- land, and then thirty years of age. which makes him in 1900 sixty-four years old. After taking a good look at him. whether one had long known him or not, one would say he was about fifty. He is of medium stature and weiglit, clean shaven, a decided blonde, has a fine large eye. and is very alert in his move- ments. He has never touched alcohol or to- bacco. His old partner, McDougall Cturn to iiis sketch) believed in Women, Wine, Whis- ky and War. Mr. Lloyd does not. When once or twice, in illness (at one time critical, a few years ago) his physician prescribed whisky, Mr. Lloyd rebelled, and only yielded when the physician threatened to have him held wliile it was administered. Mr, Lloyd lias never married. He devotes some of his time to fraternal orders, of course to Masonry especially. We well rememlier hearing Mr. Lloyd and Robert C. Rogers (who had been public ad- ministrator) engaged in business conversation in 1872. Lloyd remarked to Rogers that he would givr ten thousand dollars for a certain piece of property. When he turned away we said to Mr. Rogers. "Mr. Lloyd has pros- pered." (It seemed to us so short a period since he had begun practice, without resources as we understood). "Well," said Rogers. "I would take his chock for ton thousand dollars." .\ few years l.iior. when iho Rank of Cali- fornia suspended (in 1875), it was very soon ro-incorporato(l by .1 syndicate, of which Mr. Lloyd was .1 nuinlur. TTo subscribed $IOO,- 000,00. ;in(l canu- afterwards to hold slock of tho bank to the anionnt of $150,000.00. Mr. Lloyd, indopondcnt of his partner, has Iirobably tho finest private law library west of Chicago. Ho told us in his office on the 21 St of May, 1890. that his law library had 638 History of the Bench and Bar of California. cost him $30,000.00; that he had the Supreme Court reports of all the states and the United States, and all the Common Law reports; that he bought two or three new books every day, at a daily expense of about ten dollars. He is a man of very simple tastes, dresses in plain black and belongs to the conservative type of men. He is very approachable and companionable, and no one enjoys more favor among his professional brethren. We had oc- casion to speak of Colonel Joseph P. Hoge's holding to one office in Montgomery Block for thirty-four years, until he went on the bench late in life. Mr. Lloyd has only changed his office twice since he became a lawyer forty years ago ; but more interesting to note, dur- ing even a longer period he has not changed his residence at all. Able to buy or build on a grand scale, he clings to the old home at loio Folsom street, near Sixth, where he grew up to manhood and where his mother lived until her life ended a few years ago. GARRKT W. McENERNEY. This man oi counsel and argument has, at the age of thirty-five, placed himself among the recognized masters of the profession in this his native State. Indeed, it was not yes- terday when he pressed his way to this high authority. When he had been at the bar about ten years, some five years ago, he was a prin- cipal figure in the great causes that occupied the courts, and he then entered the wide province occupied by ten or twelve dominant minds of the State unchallenged for general legal ability. Mr. McEnerney was born at Napa, Califor- nia, on February 17, 1865, and was graduated at St. Mary's College, San Francisco, in June, 1881. He never attended a law school, but prepared himself for the bar by reading in law offices and at home. He was admitted to the bar of the Supreme Court on March 1, 1886. He commenced the practice at San Francisco in the office of David McClurc. In 1887. '88, '89, he continued business alone. In the fall of '89 he formed a partnership with Dennis Spencer, a successful lawyer who had removed from Napa. After two or three years, this firm was dissolved, and Mr. Mc- Enerney went into partnership with George H. Maxwell. This lasted a year or so, when Mr. McEnerney entered the prominent firm composed of ex-Judge John A. Stanly, Geo. R. B. Hayes, and Henry W. Bradley, which now became Stanlv Haves, McEnernev &' Bradley. This association also continued for about one year. Since 1895, Mr. McEnerney has been alone in the jiractice, with offices in Nevada Block, and in the years since passed. on account of his connection with celebrated cases, the public prints have kept his name and his abilit}- before the people. A San F^rancisco paper, the Bullctiii, in Aug- ust. 1895, declaring that the old question, "Shall the boy go to college?" was being again agitated by tlie Eastern magazines, took the opinions of well known professional and busi- ness men on the subject, among the former being Mr. McEnerney and Mr. D. M. Delmas. We give here the interview with Mr. McEncr- nej' because it reveals not only his opinion, but something of the man himself. (His first name was spelled with more than one "t." which we correct.) It follows: "(jarret McEnerney was unconditionally in favor of boys going to college, and, as he him- self is a graduate of St. Mary's, he speaks as one who by experience ought to know best. He is a very young man, has become one of the best lawyers in the State, and is put down by politicians as destined some day to go to the United States senate. "Mr. McEnerne)', who is a genuinely modest lawyer, did not want to talk for publication, and it was only by persistent questioning that he could be induced to express his views. In discussing the collegiai.° work, he said: "I regard the university traininsr the same for the mind as a course in athletics is for the prize-fighter. Ir is discipline, without which a man, especially in the profes.Mons. is at sea. Men cannot be toe well educated, any more than an athlete can be too well trained.' "I then asked Mr. McEnerney how he ac- counted for the vast number of self-made men who are now in control of public affairs in America, and he rei)lii'(l : " 'Of course, many men do succeed, and make great reputations without the training that a college gives, l)ut 1 believe that each would have done better if lie had been better educated. If a horse wins a race with a hundred pounds on his back, it is not on ac- count of the load that he l)cats his competitor. Init in spite of it. Should a man walk from here to San Jose, carrying a heavy burden, he would be better able to reach there more ([uickly without the weight. My conviction is firm that every one is better for college training.' "I then broached to Mr. McEnerney the charge that is advanced against colleges, that Garret W. McEnerney History of the Bench and Bar of California. (J41 they create snobs, cads and prigs, — men who are so self-satisfied that they do not even consider it necessary to labor. He would not deny it positively, but said : 'If it is true, it is not the fault of the college course itself, but of other influences.' " Mr. McEncrney has a vigorous mind. He sees quickly, and can state his views promptly, concisely and convincingly. Hence, his suc- cess in the trial of cases, where readiness is required more even than profound learning or pleasing elocution. In arguments before the Supreme Court, where difficult questions of law are to be discussed, after ample oppor- tunity for thought and research has been af- forded to counsel, Mr. McEnerney is not sur- passed by any lawyer of his years at our bar. He masters the law and the facts ; he has something to say which is worth hearing; he says it strongly and pointedly, and when he has said it, he stops. If the case be lost, the fault will lie with the weakness of the case itself, not in the inadequacy of the advocate. He has won his position at the bar not by trickery, or by "influence," but by the faith- ful and honorable exercise of his talents, and hence his brothers of the profession admire and respect him, and rejoice in his success. \ WILLIAM M. PIERSON. William Montgomery Pierson's place at the San Francisco bar is among (he eight or ten masters who stand at the very front. His en- tire professional career has been cast in that city. It was begun before he was of age, the legislature, by special act authorizing his en- trance to the bar of the Supreme Court, when lie was twenty years old. His examination and admission occurred in April, 1862, and now, after a well-sustained practice of thirty- eight years, his capacity was never greater, nor his condition more prime. He seems to look backward and forward npnn a far-reach- ing and pleasing prospect. Mr. Pierson was horn in Cincinnati, Ohio, on the 3rd of February, 1842. His parents were Joseph D. and Catherine (Taylor) Pier- son. The original representative of the family in America was Rev. Abraham Pierson (1608- '78), a native of Yorkshire. England, and a graduate of Cambridge University, who, com- ing to Boston in 1630, preached for a while ;il Southampton, L. I., and in 1647 settled in Branford. Conn. He was active as a mis- sionary to the Indians, for whom he prepared a catechism in their lansjuasc. In 1854 he served as chaplain to the forces sent against the Dutch in New York. Being strenuously opposed to the union of New Haven and Connecticut colonies, he withdrew from Branford in June, 1667, with a large part of the population, and founded Newark, N. J. He enjoyed the warm personal friendship of Governor Winthrop, and Cotton Mather feel- ingly tells us that "wherever he came he shone." His son, also Abraham Pierson, was the first rector of Yale College (i 701 -'07) ; and his descendant. Rev. Hamilton Wilcox Pierson, was a prominent Presbyterian minis- ter in Kentucky, and president of Cumberland College (i859-'62). By the maternal line Mr. Pierson comes of New York Knickerbocker stock, and is a direct descendant nf .-Xuneki- Jansen, commonly known as Anneke Jans, wife of Everardus Bogardus. and the original owner, by grant from Governor Wouter Van Twiller, of the land now held by the corpo- ration of Trinity Parish. His childhood was passed in New York City, but in his tenth year he went with his parents to California, via Cape Horn, landing in San Francisco July 4, 1852. Mr. Pierson studied law in the offices of Na- thaniel Bennett, Annis Merrill, and Henry H. Haight, and practiced in partnership with Mr. Haight until the latter became Governor of the State in December, 1867. He was a State senator from San Francisco, 1875-1878. He introduced a bill limiting the grounds of di- vorce to adultery only, which was not passed. Another bill of his to compel newspaper pro- l)rictors to retract false and defamatory arti- cles, passed the senate by 25 to 10, on March 13. 1876. Donovan. Edgerton, Haymond, Hil- horn. Laine. Rogers, and Shirley being among those voting aye, and Bartlett, Howe and Roach being among the noes. This bill was indefinitely postponed in the assembly on the rfconinicndation of the judiciary committee, lolin R. MoConni-ll. chairman. 'I'lio most inii)ortant interests with which Mr. Pierson has been professionally connected, arc tliose which are now engaging him, namely, the litigations over the great estate of James G. Fair. In 1878. wluMi tlic attorneys of all the San Francisco hanks united in a written opinion iliat \W bank commissioners of the State were not vested with power to examine such lianks 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, 642 History of the Bench and Bar of California. in which Mr. Pierson appeared for the State in the place and at the instance of the attorney- general. The following observations from a notice cf Mr. Pierson in the Cyclopedia of American Biography arc, we think, considerately ex- pressed : "As a practitioner, Mr. Pierson is noted for sound legal scholarship of the broadest de- scription. His mind is most keenly analytical, a^c beneath a polished grace of manner he dis- plays an alertness of mind that can discern and take advantage of any weak point in an opponent's case. His oratorical powers are of the highest quality, and few are more pow- erful with juries. He has made a specialty of corporation law, and has appeared in several cases -is attorney for the Southern Pacific Company and other notable companies. In 1888 he began the study of astronomy, and is now one of the most noted amateurs in the country. He owns a fine 8^-inch reflect- ing telescope, the largest in the State outside the Lick Observatory, and with it he has made a number of exhaustive and brilliant observations. He w-as president of the As- tronomical Society of the Pacific in 1891, and IS a member of the Royal Astronomical So- ciety of England, of the British Astronomical Association, and the San Francisco Academy of Sciences. Mr. Pierson was married in 1853 at San Francisco to Anna Rogers, daughter of Captain Lawrence B. Edwards. They have two sons, Lawrence H. Pierson and Frederick H. Pierson. In 1890 Mr. Pierson formed a law partner- .-.li.i. with Robert Brent Mitchell, under the style of Pierson & Mitchell, which continued uninterruptedly and prosperously for nearly ten >ears. He is now alone in the practice. STEPHEN M. WHITE. Stephen Mallory White, ex-United States senator, and a strong leader of the California Democracy, perhaps the most eminent of the State's native sons, w-as born in San Fran- cisco on the 19th of January, 1853. The cot- tage in which he was born stood on Taylor street, between Turk street and Golden Gate avenue. It was built in 1850, and held its ground so late as the year 1881, when, although it was still a fair looking residence, it disap- pear for "business reasons." Mr. White's father was William F. White, a San Francisco merchant, who was in part- nership with John A. McGlynn and D. J. Oli- ver. He came with his parents from Ireland when four years old, and was raised on a farm in Pennsylvania and educated at Oxford Acad- emy, New York. He arrived with his wife at San Francisco in January, 1849. Shortly after the birth of his son, he removed with his family to the Pajaro Valley. There he en- gaged in farming, established a home and raised his children, two sons and six daugh- ters. He had considerable literary ability, and wrote many articles for the public press. He was the author of the large and interesting book entitled "Pioneer Times in California," wliich he published under the name of "Wil- liam Gray." He was a member of the consti- tutional convention of 1878, and was one of the State Bank Commissioners for a number of years by appointment of Governor Irwin. In the triangular contest for State officers in 1879, between the Republicans, Democrats and W^orkingmen, William F. White was the can- didate of the last-named party for Governor, and was second in the race. He died at Oak- land, where he had lately taken up his resi- dence, on May 16, 1890, aged 74 years. Stephen M. White attended a private school in Santa Cruz county from the time he was thirteen years old until reaching sixteen. In his earlier boyhood he had been taught at home by his father's sister, an extremely good woman, of superior and cultivated mind. At sixteen he was sent to St. Ignatius College, San Francisco, where he remained a year and a half. He then went to Santa Clara College, from which he was graduated in June, 1871. He studied law at Watsonville and Santa Cruz. He pursued his studies for about ten months in the office of A. W. Blair in Wat- sonville. about twelve months with .\lbert Hagan in Santa Cruz, and some eight months W'ith C. B. Younger in Santa Cruz. He was admitted to the bar of the Supreme Court at Sacramento on the 14th of April. 1874. After being admitted to practice, Mr. White removed to Los Angeles, and very soon there- after took a leading place at an able bar. He was district attorney for the years 1883 and 1884, elected on the Democratic ticket. He re- ceived more votes than any other candidate on his ticket, either a State, county or town- ship office. A few years after that time the city of Los Angeles, and the county, changed in politics most radically, by an inflow of pop- ulation from New England, and while Mr. White could not now carry tlie county, prob- ably, for any political office, he is held in uni- versal regard for his great abilities and un- challenged integrity. He is attorney for Gen- W. m. "Pierson History of the Bench a)id Bar of Califurnia. 645 eral Otis, llic proprietor of tlic great Tiiiics newspaper, the leading Rei)iil)lican organ of Southern California. Mr. White is familiarly known in every com- munity in the State, having "stumped" for his party in many campaigns. He is a man of large build, has a powerful and finely-toned voice, is a ready debater, and a masterful ])ublic speaker. He has the oratorical gift. He is really a wonderful man in this tield, and the man to address great assemblies. We have said that his county changed its politics; but he represented it as State senator from March, 1887, to March, 1889. Governor Bartlett, dying in office on September 12, 1887, Lieutenant- Governor Waterman became Governor. Mr. White having been in march of that year elected by the State senate its president pro lent., now succeeded to the office of Lieuten- ant-Governor. He was elected United States senator in Jan- uary, 1893, at the age of forty, and served a full term of six years, ending March 3, 1899. He was chairman of the Democratic national convention of 1896. When he was elected a federal senator our legislature was nearly balanced between the two great parties. The senate was Republican, the assembly Democratic. A few Populists in the lower house could turn the scales either way in joint convention. One of them did turn the scales finally, by supporting Mr. White and accomplishing his election by a majority of one. This gentleman was Hon. T. J. Kerns, assemblyman from Los Angeles. He was an old personal friend of the Senator, and his death occurred in December, 1900 . Worthy of special mention, in his faithful service as our senatf)r for six years, is the part he played in the long and hard struggle to secure a deep-water harbor at San Pedro. Mr. White has been a member of the Los Angeles Chamber of Commerce since 1889 (that body was founded in September, 1888), and in a very engaging history of the Chamber, by Charles Dwight Willard, published in 1900, the Senator's work now referred to is gracefully applauded. .After stating that the first Ijoard of j.;oveni nient engineers appointed to decide upon the best point for a deep-water harbor, in their report of December, 1891, were unequivocally in favor of San Pedro, and advised an ap- propriation of about $3,000,000 for tin- un- dertaking; and that the report of the second board, submitted in the closing days of 1892, reviewed the whole situation, and declared that San f'edro was preferable on every considera- tion, and estimating the cost of construction at about $2,900,000. the history proceeds as fol- lows : "A great piece of good fortune fell to Los .•\ngcles at this time, in the election of Stephen M. Wiiiie to the senate, a man who, by reason of Ins residence in this city, was thoroughly familiar with all the phases of the harbor con- troversy, and who was possessed of the brains, honesty and courage that were needed at such a crisis. In the fall of 1895 an organization was formed, known as the Free Harbor League, having for its object the assistance of the Chamber of Commerce in its work for San Pedro. As the United States Treasury was at this time in a depleted condition, it was pro- posed by the League that the agitation for the outer harbor be laid aside for one season, and that a request should be put in merely for such a sum as would be needed for the partial improvement of the inner harbor of San Pe- dro, a matter of $400,000. In February, 1896, four delegates, H. G. Otis. W. C. Patterson, W. G. Kerckhoff and W. I). Woolwine. were sent on to Washington to present this mat- ter. They did so, and received assurances from the chairman and other members of the house committee on rivers and harbors that the petition would be granted. "The people of Los Angeles were greatly as- tonished some weeks later, when the news came that the bill, which was about to be reported to the hoitse, contained not only the appropria- tion which had been asked for the inner har- bor at San Pedro, but also the stun of $2,900,- 000 for Santa IS'Ionica. * * ^^ "Upon this the old ciMitrover.sy started up in a somewhat new form, l)ut with more than its ancient virulence. The h'ree Harbor League protested against any money being spent on the Santa Monica harbor, and demanded that the $2,900,000, if such a sum were possible to be secured, should be devoted to San Pedro. The Chamber of Commerce was urged by the repre- senlali\e of \\]v district ( iu congress). Mr. James McLachian to act on the issue, and the directors passed a resolution reaffirming their .illegiance to San Pedro. * * The house acted. Ilien going up to the senate. Senator White succeeded, after a long and determined fight, in which a number of senators discussed the whole question in open session, in getting the item of $2.()oo.ooo placed on the continuing coniraei list, to he i^xjiended on one or the other location, as should be determined by a new i)oar(I of engineers (ibis was the third), to 646 History of the Bench and Bar of California. consist of one from the navy, one from the coast survey, and three from civil life, ap- pointed by the President. * * * "in December of 1896 the new board met in Los Angeles. It consisted of Rear Admiral John G. Walker, A. F. Rogers of the coast survey, W. H. Burr, George S. Morrison and Richard P. Mors^an. Their report was filed the following March, and was four to one in favor of San Pedro, the one being Richard P. Morgan. "One more obstacle remained to be overcome in the determined opposition of General Russell A. Alger, Secretary of War. to the expenditure of the appropriation, and a whole year was con- sumed in listening to an extraordinary collec- tion of excuses and reasons why the work should not be begun. At last, after he had been forced from one position to another, until the patience of the w^hole State, and finally of the President himself, was exhausted, the contract was let to the firm of Heldmaier & Neu. of Chicago, and the work begun." IMr. White is in the prime of his manhood, and in the fullness of activity at the Los An- geles bar. In 1899 he passed through a criti- call illness, but is fully restored to his natural energies. He is a married man. with several children, the oldest, a son. being now nearly grown to man's estate. Mrs. White was Miss Hortense Sacriste. an accomplished lady of Los Angeles, of French descent. The marriage occurred at the Catholic Cathedral of Los Angeles, on the 5th of June, 1883. JOHN D. WORKS. Judge Works was born in Indiana in 1847. His boyhood was passed on a farm and at a country school. At the age of seventeen he enlisted in an Indiana regiment in the War of the Rebellion, and had nearly two years' service in the field before the conflict ended. He took part in the battle of Nashville, and at the capture of Mobile. Returning to home and school, he turned his mind to the law at the age of twenty. Hon. A. C. Dowmey, his uncle, who was for six years a Judge of the Indiana Supreme Court, and who was after- wards Dean of the law school at De Pauw Uni- versity in that state, was then forming a class of law students, and young Works became a member. The course of reading was thorough, and embraced the recitation of forty-two vol- umes, a quantity largely in excess of what would be enjoined in any western, if not in anv eastern law school. He was admitted to the bar in 1868, and shortly joined his father, James A. Works, in practice. He was met at once by a large volume of business, his father being advanced in years and throwing the chief responsibility upon him. The young lawyer was from that time engaged in some of the most important cases. One of these was the case of Merritt vs. Humphrey, the contest of a will. The testator was a very wealthy farmer and during his life boasted to one of the old practitioners of the county that he had never paid out any money to lawyers. The lawyer remarked that every man had to contribute something to the support of the lawyers, and that if he paid nothing during his life, his es- tate would have to make it up after his death. The farmer died soon after, leaving a will dis- inheriting a part of his children. The result was a long and expensive litigation, out of which Mr. Works and several other attorneys made good round fees. Mr. Works also had some public experience before removing to California, having served a term in the lower branch of the legisla- ture, and as member of the judiciary commit- tee of that body. It was in 1877 that Mr. Works began writ- ing his "Indiana Practice and Pleading." The work is in three volumes. It grew out of the indefatigable author's own private digest. There were already two works of the kind in the hands of the Indiana bar, but this latest soon came to be accepted as indispensable. Wher the second volume appeared. Mr. L. O. Schroe- der, of Vevay, Indiana, wrote to The Law Counsellor, that "the work is all that the au- thor's most ardent admirers and sanguine friends could expect or hope for." Judge Works moved to California in 1883. In April of that year he settled at San Diego. He was soon afterwards employed in a case that became celebrated, that of Burton vs. McDonald et al.. involving the title to the Jamul Ranch, a large and valuable tract of land in San Diego county. He represented the widow\ and heirs, and administrator, who claimed that the title, which ran to the widow and children, was held in trust by them, and that the property was subject to administra- tion and distribution to the heirs, as against Wallace Leach, who claimed the property under sheriff's sale. The case was decided against the heirs by the court below on all of the material points, but. on appeal, the Su- preme Court reversed the judgment on all points, the decision being as broadly in favor of Mr. Works' position, as the judgment of 1 W. J. Hunsaker History of the Botch a)id Bar of California. 647 the coiirl IjcIuw had been the other way. The case went back to the Superior Court of San Diego count}', but in the meantime Mr. Works had become Judge Works of that very court. The late Justice McKee was employed to take his place in the case. Upon a second trial Judge Works, of course, not sitting, the case was decided in conformity to the Supreme Court decision. On October i, 1886, Judge Works became Judge of the Superior Court of his county by appointment made by Governor R. W. Water- man, to serve out a part of a term. The bar of San Diego county had memorialized in favor of this selection. At the next general election Judge Works was chosen his own successor, the Democrats not placing any candidate in the field. At the end of a year thereafter he resigned because the practice of law offered him much larger compensation. On the 1st of October. 1888. Governor Wa- terman commissioned Judge Works a Justice of the Supreme Court of California to suc- ceed, until the next election, Hon. E. W. Mc- Kinstry. who had resigned. On November 6. 1888. he was elected to the place by the peo- ple, defeating Hon. J. F. Sullivan, the Demo- cratic candidate, notwithstanding the fact that the latter received the astonishing majority of eight thousand in San F'rancisco. where he was known all his life, and where Judge Works was comparatively a stranger. On the Supreme Bench Judge Works was exceptionalh- assiduous, having written more opinions than any of his high associates and these, both in their argumentation and con- clusions, have won the pronounced favor of the bar. He wrote the opinion in the cele- brated case of Sharon vs. Sharon, in July, 1889, which especially showed him to be a man of discriminating thought. Pending his election, and while he was occupying his seat on the Supreme bench, under a temporary tenure, as stated, he paid no special or notice- able attention to his own candidacy, but gave hiinsclf up wholly to tlic work of the office. After his election he notified his publishers that lie could not complete an unfinished law book while on the bench — that the people of tiie State were entitled to his full services, and should have them so long as he held office. The unfinished work just referred to was a treatise on the "Principles of Pleading and Practice." The object of the work is to give, in a clear and |)ractical form, tlie general principles of pleading and practice as they exist at the present day. as affected by the rules of plead- ing at commi")n law and in e([uity and the codes and statutes of the several states. It is neither a work on common law, equity nor code plead- ing and practice ; but on the general prin- ciples as affected by them all ; and is adapted to the use of students as well as practicing at- torneys. In May, 1887, at San Diego, Judge Works comnleted a small work, which has proved a great saving of labor to the profession, enti- tled "Removal of Causes from State Courts to Federal Courts." He has written another worK, entitled "Courts and Their Jurisdiction," which was published by the Robert Clarke Company, Cincinnati, in 1894. The Judge has a large family. One of his sons is Lewis R. Works, an able lawyer of San Diego, a notice of whom is in this His- tory. Judge Works removed his residence and main office to Los Angeles on February i, 1896. At that time he entered the well-es- tablished law firm of Wells, Works & Lee. After his advent in the office. Colonel Wells took no further part in its business on ac- count of the poor state of his health, and Judge Works became at once virtually the sen- ior member of the firm. It was not long until Colonel Wells retired from the business in name as well as in fact, the firm name then becoming Works & Lee, which it has been ever since. The Judge has been engaged since leaving the Supreme bench in all the important water litigation in Southern California. WILLIAM J. HUNSAKER. This gentleman is one of the native sons who are doing honor to the State and to the legal profession. He was born in Contra Costa county, in 1855. In 1869 he removed with his parents to San Diego, where he was educated. He studied law there under the direction of Major Chase and Judge Baker, and was admitted to the bar in 1876. He was district attorney of San Diego county in the years 1883-84. He practiced thereafter in part- nership with F. W. Britt from 1889 to 1892. In 1892 he removed to Los Angeles, and soon became the attorney of the Santa I'e Railway Company. In 1900 he formed a partnership with F. W. Britt, who had been his associate in San Diego, under the firm name of Huu- saker & Britt. This still exists. Mr. Ilunsakcr is among the leaders of the Los Angeles bar. He was connected with the cases growing out of the great railroad 648 History of the Bench and Bar of California. strike of 1894; the Bear Valley foreclosure suit, the Golden Cross Mining Company's lit- igation, the libel case of Dr. Hearne against M. H. De Young, Robinson against the Ivan- pah Smelting Company, and the Southern Cal- ifornia Fruit Exchange and Consolidated For- warding Company against the Southern Pacific and Santa Fe Companies before the Interstate Commerce Commission. Mr. Hunsaker married Miss Florence V. ' • McFarland on the 27th day of February. 1879. They have a son and three daughters. Mr. Hunsaker has always taken an active interest in the development of Southern Cali- fornia, and has long been a member of the Chamber of Commerce. He was recently elected chairman of the committee on law of that body, which numbers one thousand of the most progressive and public-spirited citizens of Los Angeles. S. F. LEIB. S. F. Leib was born in Fairfield county, Ohio, in 1848. When he was sixteen years of age he entered the army, and at the close of the war he attended the academy near his home. He then went to the University of Michigan at Ann Arbor, and graduated in the law department in March, 1869, just after he was twenty-one. In that year he came to California and located at San Jose. He be- came a partner in the finn of Moore & Laine, the firm name then being Moore, Laine & Leib. and afterwards, upon the admission to the firm of D. M. Delmas, the firm name was Moore, Laine, Delmas & Leib. All of these have long been justly celebrated names. Later the partnership was dissolved, and for over twenty years past Mr. Leib has continued the practice of law by himself. In the year 1889 he was appointed as one of the trustees of the Leland Stanford Junior University, and in i8g8 he was appointed pres- ident of the board of trustees of that univer- sity, and still holds that position. Mr. Leib is one of the strong men of the bar of the State, and universally so regarded by the profession as well as by the people. He is a lawyer of broad knowledge and ca- pacity, of deep reflection, superior judgment and deliberate action. His prosperity has been imbroken from the commencement of his pro- fessional career. E. R. TAYLOR. The distinguished dean of Hastings College of the Law, Edward Robeson Taylor, as orig- inal and fecund a mind as the annals of our bar disclose, was born in Springfield, Illinois, on the 24th of September. 1838. His father was Henry West Taylor, a native of Dela- ware, and his mother. Mary Thaw, was born in Philadelphia, Pa. He was educated at Kemper School, Booneville, Mo., and at To- land Medical College, San Francisco, now the medical department of the State University. He arrived in California on the 4th of Febru- ary, 1862. He was granted the degree of Doctor of Medicine by the college named on December 2. 1865. From December, 1867, to December. 1871, he was private secretary to Governor Henry H. Haight. He was admitted to the bar by the Supreme Court in January, 1872, and practiced law in San Francisco from that time until his retirement, to take the place of dean of Hastings College of the Law, in May, 1899. In October, 1879, he was admitted to the bar of the Supreme Court of the United States, and practiced thereafter in that highest tribunal and in all the federal courts in Cali- fornia. Doctor Taylor, for so he is universally called, was a member of the third board of freeholders in 1886 to frame a charter for San Francisco, which proposed charter was de- feated ; and of the fifth board of freeholders, 1898, that framed the existing charter of that city. He has been a member of the board of trustees of the San Francisco Public Library since June 7. 1886, and of the board of trustees of the San Francisco Law Library since March 30. 1895 ; Vice-President of Cooper Medical College since its foundation, in 1882, and Pres- ident of the San Francisco Bar Association for 1890. 1891. 1894 and 1805. During all this period he was very actively occupied with his professional business. He was a conspicuous figure in the long contest over the inheritance of the great estate of Thomas H. Blythe, being the attorney, with Harvey S. Brown, for the Williams claimants, and also the appointee of the court to repre- sent absent heirs generally. He was also prom- inently connected through a long period with the litigation over the "Pueblo Survey" of San Francisco. Among Dr. Taylor's published writings are the following : Paper on Chronic Myelitis, published in Au- gust, 1869, number of the Pacific Medical and Su);^ical Journal. History of the Bench and Bar of California. 649 Paper on a Case of Scirrlius of the Pan- creas, in llif Ai)ril nninl)cr, 1866, same jour- nal. Paper on the Pathology of Bright's Disease, published in the December. i86g. number of the same journal. Prize essay 0)i the Chemical Constitution of the Bile, awarded by the American Medical Association, and printed in 1871 in their pro- ceedings. Paper on Medical Education, read before the State Medical Society of California, Octo- ber 2, 1872, and published in their proceedings for that year. Paper on the Ilstablishnicnt of the Bounda- dies of the Pueblo Lands of San Francisco, in January number, 1896, of the Overland Monthly* Sonnets of Jose Maria de Hcredia, rendered into English : published by William Do.xey, San Francisco; two editions, 1897 and 1898. Moods, and Other Verses, published by Shephard & Eider, San Francisco, 1899. Memories, and Other ferses. printed in De- cember, 1900. for private circulation. Dr. Taylor became acquainted with Henry George when he was private secretary to Gov- ernor Haight, in 1870. Cieorge was editing the Sacramento Reporter, a Democratic paper. Henry George. Jr., in his life of his father (1900), states that the two men "afterwards grew intimate, until, when "Progress and Pov- erty" was being written, Taylor was chief friend, critic and adviser." There are many pleasing references to Dr. Taylor in the "Life of George." George be- gan writing his great book on the iSth of Sep- tember, 1877. His purpose was to write a magazine article — an inquiry into the cause of industrial depressions, and indicating a remedy. "When the article was in form, he read it to his close friend. Dr. Edward R. Taylor, who was now Governor Haight's law partner in San Francisco. Taylor was much impressed; so much so that he urged George to reserve publication of the article, and to give the sub- ject a more extended treatment." (Page 292.) Mr. George took the advice, and expanded his article into a book. On March 26, 1878. George delivered a pay lecture in San I-'ran- cisco, at tile reipiesl df the Land Kit'inin League of Califnrnia, which IkuI just been or- ganized to prt)pagate his ideas. In June of the same year he lectured on "Moses" before the Young Men's Hebrew Association. This created much surprise and delight. At its close. Dr. Elkan Cohn, the rabbi, asked of the chairman, Max Popper : "Where did you find that man ?" "Nevertheless, Dr. Edward R. Taylor," re- marks the author of the life, "who also had heard the address, observed to Mrs. George, as they walked to a car on the waj' home, 'Considered in itself, that lecture was a fine effort, but Mr. George is writing a book that is so much superior in importance that to stop for matters like this is like wasting time.' " On page 308 the same author, after naming close friends with whom the philosopher ad- vised in writing. Progress and Poverty," among the number being Judge James V. Cof- fey and Judge James G. Maguire, says : "But Taylor was the mainstay, the only man who read all of the manuscript, and subsequently all of the proofs. * * * To him George made constant reference, ;ind he responded with tireless zeal." "During all this labor of making plates," to quote further, "Taylor was of inestimable service to his friend, encourag- ing and suggesting, reading proofs, and even, like George, going back to the printer's case to set a few 'sticks' of type." George made written and happy acknowledg- ment of his great obligation to Dr. Taylor, "not only as compositor, proof-reader, critic and poet, but still more by the clearness of his judgment, the warmth of his sympathy, the support of his faith." Dr. Taylor married in San Francisco, on the 20th of April, 1870, Agnes Stanford, a niece of Leland Stanford. Five cnildren have been born to them, of whom two are living, namely : Edward DeWilt Taylor, born June 17, 1871. and Henry Huntly Taylor, born December 25. 1879. * Dr. Taylor was the main factor as counsel against the Stratton survey, and was personally cognizant of what he set down in this v.iluable article. — Editor. w. s. (;ooi)fi-:llow. William Seolt Gdodfellow was born at .\uck- land, New Zealand, un ihc i6th of Septeml)er, 1850. llis f.'ither was a native of Scotland, •md ;i f.irnur, and lield the ofliee of magis- iiale. Mr. (ioodfellow was educated in Scot- land, at ilie Edinburgh Collegiate School, and ilie iviy.il lligh School of Edinbm-gh. He read law \\\ liu' L'niversity of Cambridge, and was .idmitted to the bar by the Inner Temple in London, in 1873. He came to San Francisco in 650 History of the Bench and Bar of California. February. 1875, and in April, 1875, was ad- mitted to the bar of the State Supreme Court. Mr. Goodfellow practiced alone in San Fran- cisco for ten years, when he entered into part- nership with John R. Jarboe and Ralph C. Harrison, under the firm name of Jarboe, Har- rison & Goodfellow. This association con- tinued for five years, when it was dissolved at the close of 1890 by the election of Mr. Har- rison to the Supreme bench. He has had no other partnership. Mr. Goodfellow was not long in getting into a good practice at the bar of our great city. He is a man entirely without preten- sion. His law reading has been very wide, his perception of legal principles is very clear. He is extraordinarily alert and strong in ap- prehension. An old legal friend of -ours, who was .so pleased with the official report of a certain Supreme Court decision that he called it "a beautiful decision," would call Mr. Good- fellow a "beautiful" lawyer. His presentation of a complicated case is certainly a beauti- ful thing to see. He has now for many years had in professional charge the largest inter- ests and been the legal adviser of some of the most "solid" men. In addition, great causes which have engaged the courts and filled the public mind, have made his name familiar over a wide field, and he is acknowledged by men of all classes, including those observant minds that best adorn the bench, to be one of the car- dinal exponents of the legal profession in Cali- fornia. Mr. Goodfellow rested from his labors in 1900, to make a tour of the world. He re- turned, to take up business in increased ampli- tude. He is a man of average stature, of quick movement, and pleasant address, but so busy as to take on a business air. Just one-half of his fifty staunch years have been spent in this State, and there is promise of long life and that "autumn will come in yellow clad, as though he joyed in his plen- teous store" — for Mr. Goodfellow, with all his affairs and all his cares, never lets them work mischief for him, but "recruits" in sea- son. For all these twenty-five years he has made his home in Oakland. He has never had anything to do with politics. "I never held an ofiice," he said to us years ago. "and I never intend to." Not long after his location here, Mr. Good- fellow made a visit to England and married a young lady whom he had long known. They have five children, all born in California. THE EDITOR. FEDERAL AND STATE JUDICIARY-PAST AND ^ ^ PRESENT ^^ ^ I t& eja eia G^ 43 (& e& iS»^3j5nt into the Fourteenth District, and he was again elected judge of that di.stricl. .At the end of his second term, in 1870, he removed to Sacramento City and practiced law there for alxnU a dozen years, and during a part of iliat time was also register of the I'nitcd Slates land office. He was also elected a member of the constitutional convention, which formulated the present constitution of the State, and served as such. As a member of the conventii)n lie voted against must of its 662 History of the Bench and Bar of California. provisions, and afterwards opposed its adop- tion by the people. In 1882 he was appointed by G6vernor Perkins Judge of the Superior Court of Sacramento county ; and in 1884 he was nominated by acclamation for the ensuing term and elected by a very large majority. In 1886 he was nominated by the State Republican Convention for Justice of the Supreme Court, and was elected. Having served a full term of twelve years he was, in 1898, nominated and elected for another term of twelve years, which he is now filling. Judge McFarland followed, when a young man, the old Whig school of politics, but since the first election of Lincoln has been an un- wavering and persistent Repnlilican. With respect to the judicial decisions in which he has participated, and the opinions which he has written, it may be said that they embrace all the manifold subjects of litigation in Cali- fornia, and that he has probably taken part in as many decisions as any other California judge. He has done a great deal of hard work on the bencli — he has devoted practically liis whole life to it. His numerous opinions, con- tained in the California Reports, from volume 70 to volume 1226 thus far, have the concur- rence of the bar generally. He has also de livered addresses and written literary papers which have been well rceived — as, for instance, his remarks from the bench on the death of ex-Supreme Judge A. C. Niles, published at the end of volume 82 of the Reports. His remarks before the Howard Club of San Fran- cisco at the annual banquet of November 9, 1900, in response to tlie tlunic "Reminiscences of College Days," elicited ajjplauM'. ami many parts were received with much laughter. They are in print for private circulation. RALPH C. HARRISON. Ralph C. Harrison, Justice of the Supreme Ct)tn'l, was a teacher of mathematics in Ar- menia Seminary, New York, in 1853, and a teacher of ancient languages and rhetoric in the same institution, 1854-56. He was a mem- ber of the Connecticut legislature in 1857. He studied law in the Albany Law School, 1858- 59, and was admitted to the bar of the New York Supreme Court in 1859. He practiced law- in San Francisco from i860 to January, 1891, when he became a Jus- tice I if the State Supreme Court, having been i-lected as a Republican for the term of twelve years. He first registered as a voter in San P'rancisco on June 2, 1866, as a native of Con- necticut, then aged 34 years. W'lien he went to the Supreme bench in Jan- uary, ib>'9i, he had been in partnership with John R. Jarboe since 1867, for the last five years of wiiich period W. S. Goodfellow was a member of the firm. Right after his arrival in San Francisco he formed a law partnership witii General David D. Colton, which con- tinued until he joined Mr. Jarboe. His term as Supreme Judge will expire in January, 1903. .\t the liar Judge Harrison was noted for his close application to his business. He was hard-working and painstaking. He impressed all with his clearness of mind, his knowledge, accuracy and fairness. For legal acumen, lucid statement, and understanding of both the facts of a case and the principles governing it, he liad few e((uals. He was of high character professionally and personally. A considerable fortune is tlie result of his practice. He has proven a very learned and industrious Judge. He has been twice married, losing his first wife many years ago. The present Mrs. Harrison is a niece of Hon. Whitelaw Reid, the eminent journalist and statesman of New York. \\ A. C. ADAMS. Amos Crandall Adams of San Francisco, one of the survivors of the old district bench, was born in Pennsylvania, March 3rd, 1824. He is eighth in descent from John of Cam- bridge, 1650, (said to be VI John, son of Henry of Braintree). His parents were Jonas Russell and Olivia (Seeley) Adams. He re- moved with the rest of the family in 1836 to Downer's Grove, 111. ; returned to Penn- sylvania, and entered Franklin Institute at Hartford and afterwards read law in Chicago, 111., with Spring & Goodrich. He was ad- mitted to the bar in 1848. He came to Cali- fornia in 1850 and engaged in mining, trad- ing, etc., until 1854, when he resumed the prac- tice of his profession at Mokelumnc Hill, Cala- veras county. In January, 1869, he was ap- pointed by Governor H. H. Haight, District Judge of the then eleventh judicial district History of the Bench and Bar of California. 663 court (embracing the counties of Eldorado, Amador and Calaveras) to fill the unexpired term of Hon. S. W. Rrockway, resigned. In October following, he was elected to a full term of six 3'ears, and at the expiration there- of removed to San Francisco, and again re- sumed practice, still continuing the same in partnership with his son under the firm name of Adams & Adams. He married Miss Arvilla Aldrich in 1851, and, after her death, Mrs. Regina Kraft, January 21st. i8()6. lie is of Democratic politics. JOHN R. AITKEN. John R. Aitken was born in San Francisco. California, March 31, 1854, of Scotch parent- age. He is a graduate of Hastings Law Col- lege ; was admitted to the bar of the State Supreme Court, June 10, 1886, and began practice in San Francisco. In 1888 he re- moved to San Diego city, and was elected in the same year Superior Judge of San Diego county, to fill out the term of Hon. John D. Works, resigned. His period of service was from the opening of the year i88g to the close of i8go, at the end of which he resumed prac- tice in San Diego. In 1893 he returned to his native city, where he has ever since been en- joying a good general practice. JOHN K. ALEXANDER. John K. Alexander, the first Superior Judge of Monterey county, and who held the office from January. 1880, to January, 1891, was horn October 8, 1839, in Rankin county, Mis- sissippi, of American parents. His paternal ancestors were Scotch, and on his mother's side they were English and German. His father was a contractor and builder, and did a large business. In November, 1840, leaving his family, a wife and two sons and a daughter, at Jackson, he started for Califor- nia, arriving in the following January, and settled at Sacramento. From the lime he left his family uiuil July. 1S54. his son, John K.. attended Ixitb public and i)rivate schools at Jackson. In that year the family circle was complete again, at Sacramento. California. There John K. entered a public grammar school, w liicli he attended initil the fall of 1857. Then, his father being interested in a gold mine in Calaveras county, he was offered an opi)i)rHniily tn make his first nuMu-y. and worked in the mine (the Wondhouse Quartz Company's claim) for about one year, labor- ing hard, to his great advantage physically. Returning to Sacramento, he attended the High School for three years, serving one term as vice-principal. Then graduating, he com- menced the study of law in the office of George R. Moore, who was a good lawyer, with a large business. He studied later under Harri- son & Estee, and was admitted to practice in the Supreme Court, October 7, 1862, upon mo- tion of Hon. Morris M. Estee, now United States Judge of Hawaii, and after examina- tion in open court. In 1863 he formed a iiartnersliip with his old instructor, Mr. Moore, which lasted until the latter's death. Mr. .Alexander then continued the practice alone, doing a good and paying l)usiness un- til the fall of l8()S, when he formed a p.irl- iiershii) with Hon. Jojni W. .Armstrong, who afterwards became ."-inperior Judge. This firm was dissolved uixm .Mr. Alexander's i.ikin.g the office of district .ittorney in 1870. In tile e.inipaign of i8()7, which resulted in I he election of llenr\ 11. Ilaighi ;is Governor. Mr. Alexander w.■l^ a conspicuous political figure at the capital, being chairman of the largest Democratic organization in that sec tion. I'wo years later his i).iiiy nominaled him for district attorney, and he was elected in a Reiiublican county over his Republican o])])onent. M. C. Tilden. by f>84 majority, lie serxi'd oiu' term, two year>>. with more ib.in average success, and was llu'u nominated by his party for County Judge. Rut he had to run against that popular veteran. Hon. Robert C. Clark, who held a contiiniotis estate in that office uiUil it was abolished I)v the constilu- 664 History of the Bench and Bar of Califontia. lion of 1879, and also to stand up against the popular current on which Newton Booth was just then careering towards the chair of State. He now went with his family to the east- ern 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 part- nership with A. C. Freeman, who has since produced many law books, and materially as- sisted in the preparation of hi.s work on "The Law of Judgments." In August. 1874, Mr. Alexander dissolved with Mr. Freeman, and on account of ill health, removed to Salinas City, the Monte- rey county seat, where he opened a law office. ne had not been there long when the board of supervisors employed him in several im- portant matters of public business. Among these was the case against Robert McKee, ex- county treasurer, on his bond, and one agamst M. .v. Castro, e.x-tax collector, also on his bond; and in a criminal action against the latter, and W. H. Rumscy. 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, al- though often pressed to re-enter politics, re- fused, and attended strictly to his law busi- ness. But, in 1879, being nominated by his party for Superior Judge, he accepted the nom- ination, and was elected by 359 majority. He was re-elected in 1884, by a much larger ma- jority in a straight fight between the Demo- crats and the Republicans, though the State and county went for James G. Blaine for Pres- ident. His candidacy in 1879 was induced by a re- quest in writing, signed by 100 of the leading citizens of Monterey coiuity. differing in poli- tics, but all moved by a tear that the candi- date of the Workingmen's party would be Su- perior Judge. He was afterwards nominated by the Democratic convention and the nomi- nation was endorsed by the Republicans. He was elected over two opponents, for, besides the candidate of the Workingmen (N. G. Wyatt), the New Constitulion party, another ephemeral organization, presented a nonunce in the person of an old bar leader of that region. Hon. D. S. Gregory, since Superior Judge of San Luis ObisjH) county. Judge Alexander has been ni very full prac- tice at Salinas since leaving the bench. He is cautious, careful and methodical, a man of dispatch. Very few of his judgments from the bench were reversed, although many appeals were taken from them. The first murder case tried before him, that of the People against lams, is reported in 57 Cal., page 115. There the Supreme Court unaniinously and highly complimented him. The official reporter, Mr. George H. Smith, sets forth Judge Alexan- der's charge to the jury in full. This is a fine legal paper, and adds to the value of the Reports. The Supreme Court in their opinion affirming the judgment of Judge Alexander, declared: "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 homi- cide. It is a long charge, completely cov- ering all the points in the case, and is, in our opinion, entirely correct." Judge Alexander married at Petaluma, Au- gust 2, 1865, Miss Sallie B. Carothers, and has two sons, Eliner P. and Roy L., and a daughter, Maroueile Alice. He is a member of the San Francisco Bar Association, whose rooms he finds a most congenial place of re- treat and conference in frequent visits to the metropolis. He has a younger brother, Daniel E., practicing law at San Francisco. On July 7, 1888, he was honored with the de- gree of LL. D. by the Los Angeles University. Judge Alexander drew the very complicated will of Alberto Tresconey, which was con- tested, and, after a long trial, was admitted to probate at Salinas. No direct appeal was taken, but it was again attacked collaterally. Judge Alexander represented the beneficiaries, and the will was sustained in the Superior Court, and on appeal. (119 Cal. 571.) The estate was appraised at over $500,000. It was principally through Judge Alexan- der's efforts that a fine Masonic temple was erected in Salinas by the fraternity, in 1896. He is President of the Masorfic Hall Asso- ciation, and has been such since its organiza- tion. He is a Past Master and Past Hiah Priest of the order, and Past Patron of O. E. Star. His father died in December, 1896, aged eighty-six years. His son, Elmer P., was appointed tax collector of Monterey county in July, 1897, to fill the unexpired term of the defaulting collector, Charles L. Westlake, and has held the ])osilion ever since, having been elected for a new and full term. Elmer is married, and has one son about three years old. Judge Alexander received a very complimen- History of the Bench and Bar of California. 665 tary vote for Supreme Judge in the State con- vention that nominated Janus II. Budd for Governor (1894). He is still in the active practice of the law at Salinas. hands of the Republican party, and the en- dorsement of the Democratic party. M. T. ALLEN. Matthew Thompson Allen, one of the Judges of the Superior Court of Los Angeles county, was born near Greenville, Ohio, September 17, 1848 — the son of Rev. John Allen, who was a native of Ireland. He attended the common schools of Ohio, and enjoyed a partial course in Otterbein LTniversity, at Westerville, in that State. He studied law at Winchester, Indiana, in the office of Hon. D. M. Bradbury, and for a short time was assistant prosecuting attorney for the nineteenth circuit of that State. Returning to Greenville. Ohio, in 1871, he entered upon the practice of law, which he con- tinued until the fall ol 1886. In that year, on account of ill health, He came to California and settled at Los Angeles, resuming the prac- tice there in the following 3'ear. He was elected a Judge of the Superior Court in the fall of 1896, and beean his term on the bench, January i, 1897. Prior to this he was L'^nited States attorney for the southern district of California during the administration of Presi- dent Harrison, resigning such position upon the incoming of President Cleveland's second term. During Judge Allen's incumbency upon the bench, he has been the author of two decisions which have attracted more than usual attention, viz., that which declared that marriages at sea, commonly termed "tug-boat marriages," are void; the other decision enforced the right of an indigent husband to maintenance out of the separate estate of the wife, where he had been driven from home by cruelty. Both of these decisions were affirmed by the Supreme Court. FRANK M. ANGELLOTTI. The Judge of the Superior Court of Marin county is a native son of that county, born in the year 1861. He was educated in the schools of this State, and is a graduate of the Hastings College of the Law. He commenced the practice of the law in San Rafael in the year 1883. In 18S4 he was elected district attorney of Marin county, and was twice re-elected to that position. In 1890 he was elected Judge of the Superior Court, and in 1896 he was re-elected without opposi- tion, having received the nomination at the JOHN W. ARMSTRONG. John \\ . Armstrong came from the State of Ohio to California in 1852. He studied law under the late Judge Fabens, at San Francisco, and after having been admitted as an attor- ney, located in Jackson, Amador county, where he mined for a year or more, during which time he practiced law when the opportunity presented itself. In the first case that he tried he needed a law book that could not be ob- tained in Jackson, so he walked to Mokelumne Hill (five miles distant), and not having the money to pay his toll on the bridge over the Mokelumne river, he waded the turbulent stream, procured the book, and prevailed in his case. He was a man of iron will, and no obstacle with which he was confronted ever deterred him from his purpose, if it was pos- sible of execution. His indefatigable industry and unparalleled perseverance, with his readi- ness to comprehend and grasp intricate prob- lems of law, soon attracted the attention of the public, and he readily acquired a lucrative practice. For more than twelve years, he was the law partner of the late United States Sen- ator James T. Farley. As early as 1858, it was said of him by a distinguished Judge of .\mador county, that he furnished the brains for the bar of that county, and more recently, in a discussion of the relative merits of the members of the bar of the State, it was said by the Chief Justice of our Supreme Cotu^t that no other attorney presented his case in a more clear, succinct and forcible manner than Judge Armstrong" did. This opinion was concurred in by the Associate Justices. He moved to Sacramento in 1868, where he soon established an extensive practice, and for thirteen years he and Judge A. C. Hinkson were associated in the i)ractice of the law. i)nring ibe early pari of the ;idniinistration nf Governor Stonemaii lie .ippointed Judge AmistrcMig to a vacancy as the last block into the arch of liberty, giving it the name of the "Keystone State," and mak- ing the endorsement the unanimous act of the thirteen colonies. Judge Davis received his early education in the .schools of his native town, and after- wards was for three years a pupil in the high school at Lawrenceville, N. J. While there he enlisted in the L'nion army, at the time of the Confederate raid into Pennsylvania, in the year 1864, and when dis- charged at the expiration of his term of ser- vice, he returned to school. Six weeks later he was graduated with the first honor of his class. In less than a year and a lialf thetc- after he re-entered the institution as an in- structor, and passed nearly six years in that position, devoting his spare time to the study of law, under Charles E. Green. L.L D., of Trenton, N. J. He was admitted to the bar by the Supreme Court of New Jersey in 1871, and soon there- after turned his steps westward. Rut a short time elapsed until he was induced to return to the East, and there accepted a position as partner with Judge J. D. Bartine. at Somer- ville, N. J., where he spent some years in active and successful practice. In 1881 he went to Arizona, and in 1882 he was appointed probate judge of Pinal county, by the Governor. In the fall of the same year he was elected to the territorial council, where he was chairman oT the judiciary com- mittee. In 1884 the Judge came to California, and settled in Santa Rosa, where, the following year, he was appointed deputy district attor- ney. He served in that capacity till 1886, when he removed to Tulare, where he still resides. Here a partnership was formed between him and J. A. Allen, which continued till the elec- tion of the latter to the district attorneyship of the county, in i8g8. when they were the oldest law firm in the county. This election com- pelled their dissolution, since which time Judge Davis has handled alone what has grown to be a successful and profitable law business. In 1890 he was nominated, without effort on his part and without opposition, as the Repub- lican candidate for Superior Judge of Tulare county, and made a very complimentary though unsuccessful run, his party being largely in the minority in that county. Edivin cA. Da^vis History of the Bench and Bar of California. 687 In 1884 he was nominated for the assembly, and was elected. He has been prominent in G. A. R. circles and in the Masonic fraternity, and has been a Mason for over thirty years, having passed through the chairs and become a past master in two states. He is a studious, careful practitioner, pre- ferring to keep his clients out of litigation rather than to extricate them, even in a satis- factory manner, after they have become in- volved. His record, as legislator, lawyer, and judge, is without spot. EDWIN A. DAVIS. Edwin A. Davis, Superior Judge of Yuba and Sutter counties, was born on the 30th day of June, 1839, in Livingston county. New York. At the age of ten years he was throwii, upon his own resources, and began business by working in summer on a farm for $5.00 per month, while in winter he did chores for his board and went to school. At the age of seventeen he began school teaching, and in 1859 entered the State Normal College at Albany. In 1861 he enlisted in Company G, of the Twenty-seventh New York infantry, under Colonel Slocum, afterwards Major Gen- eral Slocum, and participated in the first battle of Bull Run, where he was disabled and was soon after discharged and sent home. As soon as he was able he re-entered the Normal College and was graduated therefrom in 1864. Shortly after his graduation he was chosen principal of the Yates Polytechnic Institute of Chittenango, and had been in charge thereof about three months when he resigned to ac- cept the chair of higher mathematics in Clin- ton Liberal Institute at Clinton, Oneida county, to which he had been elected. Here, on January ist, 1865, he married Miss Imogene Waggoner, daughter of Rev. W. H. Waggoner, a Universalist clergyman, the lady holding a corresponding position in the fe- male department of the institute named. Here, also, in October, 1868, was born to them their only child, Wm. H. Davis, who is now the executive secretary of Governor Gage. In 1867, Judge Davis received from Ham- ilton College the degree, in course, of bachelor of laws, which entitled him to practice law in all the courts of New York. At the end of the year 1868, he and his wife resigned their positions in the institute, and soon thereafter started for California, arriving in San Fran- cisco bv steamer on March iSth, 1^(^)0. They at once proceeded to Marysville, and have ever since resided in Yuba county. During the first five months of his residence in this State, Judge Davis taught school at Campton- ville, at the close of which period he was elected a teacher in the city schools of Marys- ville. Here he taught until the end of the school year, July, 1870, when he formed a law partnership with Eastman & Merrill, under the new firm name of Eastman, Merrill & Da- vis. The firm then opened a branch office at Colusa, under the management of its junior member. This business arrangement lasted but a few months, however, and in February, 1871, the junior member returned to Marysville and opened an office by himself and has since conducted business alone. In the fall of 1871 he was elected district attorney of Yuba county, on the Republican ticket, and was re-elected in 1873. He was not a candi- date in 1875, but in 1877 he was again elected to that office. In 1879 he was elected joint senator from Yuba and Sutter counties by over 500 majority. During his term as sen- ator, he was chairman of the committee on education, and was a member of the judiciary and other committees. In 1887 he received from Tufts College, of Boston, Mass., the honorary degree of master of arts. He was appointed by Governor Markham, Judge of the Superior Court of Yuba and Sutter counties in 1891 to fill the vacancy . caused by the death of Hon. Phil. W. Key- ser, and two years thereafter was elected to fill the unexpired term. At the end of that term he was again elected and is now serving his second term. The foregoing .sketch of Judge Davis is taken, substantially, from "A Memorial and Biographical History of Northern California." published at Chicago, in 1871, by the Lewi.e !'nl)li>hing Company. W. S, i).\V. W. S. Day. Judge of the Superior Court of the county of Santa Barbara, was born in Smith county. Tennessee, March 14. 1848. In 1859 he went with his parents to .Arkansas, and thence in April. iS()i. to Union county, Illinois. He was admitted to practice by the Supreme Court of that slate at its June ses- sion. 1874. and by the Supreme Court of the United States in October, 1883. He was State's attorney for his county from 1876 to 1880. and a member of the Illinois legislature in 1887-8. He came to California in June, 1888, 688 History of the Bench and Bar of California. and located at Santa Barbara. He was ap- pointed Judge of the Superior Court in April, 1897. to fill the vacancy occasioned by the resignation of Hon. W. B. Cope, and was elected to succeed himself in November, 1899. W. F. FITZGERALD. General W. F. P'itzgerald had become dis- tinguished in several lines or s])heres before he settled in California. His activity in our State has been consonant with lus previous career. He was born at Jackson, Mississippi, on the "th of February, 1846. His earliest 'education was received at a private school, which he left at the age of twelve years to enter St. Mary's College in Kentucky. While he was in that institution the Civil War opened, and he en- listed, on the J/th of March. 1861, at the age of fifteen, in the Confiilerate army, lie served through the war, and was several limes pro- moted for gallantry in action. The Vicks- burg Daily Herald, many years afterward, when General Fitzgerald had become promi- nent in law and politics, thus referred to his brilliant military record: "It was under the eye of the gallant Bob Smith that Fitzgerald, then a beardless strip- ling of seventeen, charged, with his company, the impregnable federal works, held by a large body of troops, strongly intrenched, witli heavy siege guns, behind quadrilateral earthworks, and fell, sword in hand, pierced through the lungs, at the foot of the murderous parapet. He alone of his entire command succeeded in reaching the works. For his gallantry and reckless daring, yoiuig Fitzgerald was pro- moted to a first lieutenancy on that bloody field of battle." At the close of the war the young soldier, then only nineteen years of age, commenced the study of law. He was admitted to tht' bar by the Supreme Court of Mississippi, on the 18th of February, 1868. Beginning practice at Jackson, the capital, he soon entered upon _! a very active professional and itublic life. He was twice elected city allorney of Jackson, and was afterward, for seven years, district attor- ney for the judicial district embracing Jack- son and V'icksburg, the most important in the state. He espoused the cause of the Repub- lican party, whicli party nominated him for attorney-general in July, 1S81. He was en- dorsed by the Greenback and Independent Democratic parties. He ran five thousand votes ahead of his ticket, but was defeated, the regular Democrats carrying the state by a heavy majority. in Jamiary, 1882, when the distinguished Democratic statesman, L. Q. C. Lamar, was re-elected to the United States senate. Gen- eral Fitzgerald was the caucus nominee of the opposition for the place. The Vicksburg Cuiiiiiicrcial (Democratic) observed at the time, that, "Although the Democrats are in the majority, and will undoubtedly elect Senator Lamar as his own successor, the nomination of General Fitzgerald shows in what high es- teem he is held oy his party, of which he ia the acknowledged leader in Mississippi." The General was one of the delegates from the Cotton E.xchange and Chamber of Com- merce of the city of \'icksburg to the National Mississippi River improvement convention, which met in Washington, D. C, in February. 1883. While attending that convention he was ai)])ointed by President Arthur a Justice of the SuprciiK' C'onrt of .Arizona. I he senate unan iniously eontirmed the nomination. The ap- l)ointee had just been re-elected district attor- ney in Mississippi for a term of four years, ile resigned this ofhce, and assumed that of United States Judge in Arizona. This latter position he also gave un. after two years" in- cumbency, and removed to Los Angeles, Cal- ifornia, There he quickly attained prominence as a lawyer and citizen. He became chairman of the board of directors of the Chamber of Commerce, a member of the Republican State central conmiittee, one of the original prospect- ors and a director in the California Sewer-pipe Company, one of the largest manufacturing industries in Southern California, and was sev- eral limes president of the Republican county conventions. In 1892 he was elected and served as chairman of the Republican Stale central eonnnittee. Samuel K, Dougherty History of the Bench and Bar of California. 091 On February 2, 1893. Governor Markham appointed General Fitzgerald an Associate Justice of the Supreme Court, in place of John R. Sharpstein, deceased, and he served for the unexpired term, ending with the close of the year 1894. In the latter year he was elected attorney-general of the State, and served the four years' term, which ended in January, 1899. In 1899 he was appointed by Governor Gage to a vacancy on the Superior bench of Los Angeles county, and he served the frac- tional term which ended in January, 1901. Upon leaving the bench, as last stated. Gen- eral Fitzgerald resumed the practice of law at Los Angeles. He has a wife and a married daughter. Mrs. Fitzgerald is the daughter of the late Dr. C. S. Knapp, of Jackson. Mississippi, and niece of the late New York statesman, Daniel S. Dickinson. SAMUEL K. DOUGHERTY. Judge Dougherty was born at Berien Springs, Michigan, July 2, 1851. His prepar- atory foundation for the law was laid in Mas- sachusetts, where he was fitted for colleee at Graylock Institute, in Berkshire county. He afterwards entered Amherst College, and took the full course, graduating with the degree of Bachelor of Arts, in 1878. He studied law for three years in the office of the bar leader and distinguished statesman, Lyman Trum- bull, in Chicago, and took a three years' course in the Union College of Law in that city. Very soon after this he came to California and located at Petaluma, where he began the practice of law. He was early and generally recognized as a man of fine legal ability and high character, studious and laborious, and secured many friends and clients, .'\fter five or six years of general practice, he was elected one of the Judges of the Superior Court of Sonoma county, in 1888, to serve out an unex- l)ired term. He has been twice re-elected. He is a man of superior judgment and iiatient investigation, and has the confidence and re- gard of the bar and of l)oth political ])arties. lie is Re])u!)lican in his political views. ROliERT FERRAL Ex-Judge Ferral like his close personal friend, the political economist, Henry George, '.vas l)orn in Philadelphia. He was born two vears after Mr. George— October 13. 1841. He came to California with his father, and the hit- ter's family, in 1852. ;irriving at San Fran- cisco, by steamer, in June. Colonel E. D. Baker was a passenger on the same steamer. The elder Ferral was a journalist. He was a Democrat, while Baker was a devoted Whig. The two gentlemen had a clash on the steamer, but it did not go beyond a war of words. We believe that politics had nothing to do with it. The Ferral family settled at Santa Rosa, where the future Judge grew up, attended school, and decided to follow his father's pro- fession. He was an editor and journalist for many years, both before and after his admis- sion to the bar, in California and in Nevada. He was admitted to the bar at Aurora, in the latter state, in 1863. Returning to California, he became a figure in politics on the Demo- cratic side, and at the legislative session of 1869-70, when there was a Democratic ma- jority in both branches, he v/as elected clerk of the assembly. At the next session, 1871-72. when the senate was Democratic and the house Republican, he was made secretary of the sen- ate. The custom was, and is, that the house shall be first called to order by the person who was clerk of that body at its last session. Mr, Ferral, who had been clerk at the eighteenth session, accordingly called the house to order at the nineteenth session. He then went into the senate chamber, where he was soon in- stalled as secretary. At the twenty-first session. 1875-76, the legislature was again Democratic in both branches, and Mr. Ferral was again made clerk of the assembly. He was assistant district attorney in the years 1874 and 1875. During the years 1872 and 1873 Mr. Ferral was an editorial writer with Henry George on the Evcninii Post, San Francisco. During lliis period, and later, he appeared now anc' then on the lecture platform. He sometimes addressed the Dashaway Temperance Society. His lecture on Aaron Burr may be found in the Post of March 3, 1873. He was the first and only Judge of the City Criminal Court, which was created in 1876, and passed out of exi.stence with the old constitution in January, 1880. He stei)pcd from that ])lace to the bci.ch of the new Superior Court, being one of the first twelve Judges of that tribunal chosen un- der the present constitution. He drew a full lerni. ;md servi'd it out, leaving the liench witli tile opening of the year 1S85. Since that time Judge Ferral has been en- gaged in law practice, his business being nearly all in the criminal line. He is a ready and ca- l)able lawyer, of high reptUalion. and a very agreeable an '^1 1 i F* ^^L -N| y j^^m^^^^^^^^^^^ H 1 Jmk i I > R E,M, Gibson History of the Bench and Bar of Califor)iia. 695 E. M. GIBSON. Col. E. M. Gibson was born at Carmel, Hamilton county, Indiana, on the 13th day of June, 1842. His education was in country and district schools, and five months in a Quaker seminary in that county, and two years in the law department of the Columbian University in Washington city, where he graduated in June, 1867. A few weeks there- after he was admitted to the bar of the Supreme Court of the District of Columbia. He came to California first in 1870, but located in this State in 1873, and has been here ever since. He was district attorney of Alameda county for four years and later Judge of the Superior Court of that county for six years. The Colonel's family are Americans and his ancestors have been in this country for two hundred years. His father and mother were born in North Carolina, where his grand- parents all lived and are buried. His grand- father Gibson was a soldier in the American army during the war of the Revolution. His mother's maiden name was Winslow and her ancestors came over on the Mayflower. His mother's mother was a Stanton of North Carolina, and belonged to the same family with E. M. Stanton, who was Secretary of War under Lincoln. Colonel Gibson won his military title in the Civil War, through which he fought hero- icall)^, suffering the loss of a leg. He has a wife and three accomplished daughters. He resides at Oakland, and is at present associ- ated in law practice with Ben. F. Woolner, (Gibson & Woolner). C. V. GOTTSCHALK. Judge Gottschalk was born in New Or leans, Louisiana, in 1827. He received his first instruction from jjrivate tutors ; after- wards he attended private schools until 1840, when he went to Philadelphia and studied in a preparatory school, from which he entered the University of Pennsylvania. Fie returned to New Orleans in 1844 and engaged in com- mercial pursuits, until 1850, when he left for California, arriving at San Francisco on the 4th day of August of that year. After remain- ing a year in San Francisco he went to tjie mines, arriving at Mokelumne Hill in Sep- tember, 1851. He followed mining for several years with indifferent success, in the vicinity of Mokelumne Hill and San .Xndreas. He early took an active part in jxililics. on the Democratic side, believing then as now that the Democratic doctrine, as taught by the fathers of our country, is the true policy for a rei)u])lican government. Judge Gottschalk has occupied various po- sitions in Calaveras county, having been dep- uty sheriff, deputy county clerk, and district attorney, which last position he resigned in December, 1879, to take his seat on the bench of the Superior Court, to which office he was elected in that year. He has been re-elected to the same office three consecutive times, hav- ing been on the bench since the adoption of the present constitution. There are five other Judges who have been on the bench of the Superior Court in Cali- fornia ever since the court was created, twenty years ago. These are Judges Greene of Ala- meda, Jones of Trinity, Arnot of Mono, Cor- coran of Mariposa, and Hunt of San Fran- cisco. JOHN C. GRAY. John Carleton Gray was born at Dresden, Lincoln county, Maine, February 2, 1837, being the fourth of nine children born to Hon. John L, and Lydia (Carleton) Gray, four sons and five daughters. Judge Gray is the only remain- ing son. Two of the boys died while yet young; and the third at the age of forty-two years, after having followed the sea twentv- five years, nearly twenty of which he was master of a good ship. In 1877, Captain Gray was presented by the citizens of Honolulu with a silver service for carrying to them the oiffi- cial notice of the adoption of the reciprocitv treaty between the United States and the Sand- wich Islands. Judge Gray's ancestors came from England and the north of Ireland, and in the Revolu- tionary War were found in both armies, as some of them held important positions in the British service before the struggle began. Both his parents were natives of Maine, where his mother died in 1874 at the age of sixty- seven years, and his father in 1897, at the age of ninety years. His sisters are all living. The family moved from Dresden to China, Maine, when our subject was but three years of age. He lived upon a farm until he w^r eighteen years old, when he bought the remain- der of his minority and started out in life for himself. He taught .school to get the means to fit himself for college, which he entered in 1859, at Waterville, Maine, then known as Waterville, now as Colby University, where he remained but two years. He then entered tiie law office of Hon. A. Libbey at Augusta. There he remained until admitted to practice in the highest court of that State. His admis- sion was on the i6th of June, 1863, and on the next day he started for California, arriving 69G History of the Bench and Bar of California. in thi^ State July 19. of the same year. He went to Sacramento, where he found work for a year and a half as night clerk at the What Cheer hotel. On the first of January, 1865. he removed to Butte count}', and taught school for the next seven years, five of which were in Oroville, as principal of the grammar school, after which and about the first of June, 1872. he opened a law office in Oroville, at which place he has ever since resided. The next year, 1873, he was elected a mem- ber of the assemblj' and took his seat in the legislature the following December. The ses- sions were then four months long, and a great amount of important business was transacted that winter. The codes had become the law of this State on the first of January, 1873. and the bench and bar had seen and tested them nearly a year, and the number of amend- ments that were presented to the legislature at that session were nearly as large and volum- inous as the codes themselves. The judiciary committee of the assembly, of which Judge Gray was a member, was presided over by Judge Williams, of El Dorado county, and contained such men as Hon. John F. Swift, Hon. M. M. Estee, Hon. J. F. Cowdery, and many others, of equal learning and fame. Before it, almost nightly, was the code com- mission, at the head of which was Hon. Creed Haymond, then in his best years, and leading lawyers from every part of the state, who did not take kindly to the innovations made by the code in their forms of pleading and practice. The sessions of that committee ran into the morning hours, and there were six of them each week, and the work there done, familiar- i'-'cd each member with the codes to that extent that each had a far better knowledge of it than other lawyers in the State. Each member went home equipped to take a leading part in the litigation of his own bar. From this school of law Judge Gray returned to Oroville, and in a very short time took a commanding place in the profession. In 1874, at the earnest request of the leading citizens of Oroville, he became part owner and editor of the Oroville Mercury, which he managed in connection with his law business, although as he often said, his editorial work had to be done at night, and on Sunday. The paper under his management soon took the first rank in the county, and maintained it as long as he was at its head. In 1878, he dis- posed of his interest in it. and devoted his whole attention to his legal business, which was rapidly increasing and would not permit of his giving his attention to other matters, as can be seen by a reference to the Supreme Court reports. He also was largely engaged in procuring government titles to agricultural and mineral lands, and some of the arguments made by him before the commissioner of the general land office, and also before the secre- tary of the interior, were among the best received by those officers, and have been used by others in later considered cases. He received the nomination of the Repub- lican party for the office ot district attorney in 1884, and after a hot contest was elected for a term of two years, and w-as re-elected by a much larger majority, but refused to run for a third term. It w-as during his term of office that some seven criminals, forming one of the worst bands of outlaws in the state, were sent to prison for terms varying from one to sixty years, thus ridding Oroville of a menace that had hung over it for years. In i8go, he received the nomination of his party for the office of Superior Judge, a placj then held by Judge P. O. Hundley, one of the most popular men in the northern part of the State, and who was his opponent in the con- test, but which resulted in the election of Judge Gray by a large majority. His duties on the bench, as is the case with all judges of interior counties, where farming, mining, fruit-raising, lumbering and other interests are carried on. embraced a wide field and gave full play to a brain full of common sense. Tfiat his administration of affairs gave satis- faction was evidenced by the fact that when he came up in 1896 for re-election he receiv.ed the largest majoritv ever given to a candidate in Butte count}'. He is now near the close of William E. Greene History of the Bench and Bar of California. 699 his ninth year on the bench, and is regarded as a man of more than average abilities for the place. Fairness and honesty of purpose is accorded him on all sides, and by all par- ties, who have had business in the courts before him. His fraternal life began with his entrance into college, where he joined the Delta Kappa Epsilon fraternity. He has ever since been a devoted member of it, often inviting to his home such young men as he learned belonged to the organization. He also became a Mason, and advanced as far as the order of the Knights Templar, in each of the several divisions of which he became the presiding officer, places which he filled with ability. He is also an Odd Fellow, being an encampment member. As age creeps on, he is little inclined to visit the lodges, claiming that in his day he did his full duty, and younger men should be given the places of honor. Having worked upon the farm in early life, it was not unnatural for the Judge in after years to turn his attention to the farm in this State, where the land yields its choicest re- turns, with but a tithe of the labor required of the farmer in the harsh and inhospitable climate of Maine. Accordingly, we find him turning his attention to fruit-raising as early as 1886, being the pioneer in that business in his part of the county. He cleared the land of the dense forests, planted trees, and now has one of the "show" places of this region, an orchard of some 4,000 peach trees, fifty acres of White Adriatic figs, and one hundred acres planted to olives, all in bearing and yielding bountiful harvests. He has extensive pickling works, the crop reaching a number of thousands of gallons, while his extensive oil machinery, as good as can be found in America, annually turns out hundreds of gallons of pure, sweet, delicious olive oil. Here he spends a portion of his time when not occupied with official duties. On the 6th day of October, 1869. he was married to Miss Bella R. Clark, who had been one of his pupils, and for a time had been one of the teachers m the school of which he was principal. Of this marriage, there wer<- three children, one son and two daughters, the eldest of whom, Helen, died in infancy. The son, Carleton Gray, lives in Oroville, and is following his father's profession, while tlie youngest, Miss Ida B. Gray, is the official reporter for his court. His married life was a happy one. for, though his wife was for mnnv years in p^or health, she yet possessed a siveet, lovable dis- position, and the rare good judgment almost always found among the women of Scotch parentage. Their home was their paradise. Her death took place on the 14th of November, 1897, in San Francisco, where she had gone to attend the wedding of her son. In person. Judge Gray is six feet tall, weighs about two hundred and twenty, is of florid complexion, and of a genial, happy disposi- tion. WILLIAM E. GREENE. William Ellsworth Greene, who has been a Judge of the Superior Court of the State of California ever since that Court was created. was born November 14, 1836, at Farmington. Maine. He came of a well-known New Eng- land family of that name, many of the de- scendants of which have attained prominence in professional life. The first of the family in this country came from England about the year 1635, and settled in Maiden, Massachu- setts. About eighty years later the family removed to Leicester, in the same state, where many of the members continued to reside as late as the War of the Revolution. It was there that Judge Greene's grandfather and three granduncles, and his great grandfather and three great granduncles at that time re- sided, all of whom rendered military service to the United colonies in their struggle for inde- pendence. Judge Greene was prepared for ad- mission to Bowdoin College at sixteen years of age, and later entered that institution, and was, in due course, graduated therefrom with the degree of A. B., and three years later was given the degree of A. M. He came to this State in 1863, arriving in San Francisco on August 17th of that year, and in the same month took up his residence at Stockton. He engaged in teaching there for a time, but in the early part of the year 1865 entered upon the practice of his profession. He was elected assemblyman of San Joaquin county that year and served in the session of the legislature of 1865-66. He continued in the practice of his profession until the first Monday of Jan- uary, 1868. when he began his long judicial career as County Judge and ex officio Probate Judge of San Joaquin cotmty, to which posi- tion he had been elected the previous year. He held that office until April 30, 1874, when he resigned to take charge of an extensive hnnber concern in the northern part of the State, in which he had become largely inter- im' ed. Having closed out his interest in that 700 History of the Bench and Bar of California. concern in ilio early part of the jear 1875. he removed to Oakhind. Cahfornia. and re- sumed the practice of tlie hivv, opening an office in San I'rancisco and lati'r in Oak- hind. In 1879 he was elected a Judge of the Su- perior Court of the State in and for the county of Alameda, and entered upon the discharge of the duties of that office on the first Mon- day of January, 1880, since which time he has continuously held that position, having been three times re-elected. His present term of office will expire on the first Monday of January, 1903, at which time, if he shall com- plete his present term of office, he will have been in the judicial service of the State twen- ty-nine years and four months. Of all the Judges who went upon the Superior Court bench of the State when that court was first organized, only six remain, who have contin- uously held that office to the i)resent time, and Judge Greene is one of the six. A distinguished member of the bar of this State, who is very familiar with Judge Greene's judicial career, recently, in referring to his long judicial service, spoke of him as follows, viz : "The hold which he has so long retained upon the public confidence as a lawyer and a Judge, and which grows stronger witii time, is due to his industry, legal ability, broad gen- eral knowledge and his sole aim to administer justice according to law. His chief mental characteristics are those which impel him in- stantl}' to the ])reciM' matter in (lis]nne in all controversies, whether involving questions of •law or fact, a retentive memory, a compre- hensive grasp of legal principles, a rapid ap- plication of them to the matter in hand, keen- ness of perception, accuracy of judgment, abil- ity to discover truth where hidden by motives of deception, and, finally, the ability to impar- tially consider and comprehend the whole case, and reach conclusions thereon, fortified by reason, logic and sound legal discretion. These qualifications eminently fit him to fill and adorn a judicial position. The facility with which he is able to transact a large amouiu of legal business in a comparatively limited period of time, and consequently to administer justice economically, has long been a matter of common observation and remark, i)y all who are acquainted with his judicial attainments." This is a very high encomium, and yet it is quite justified by the reputation which Judge Greene has acquired for judicial ability, un- swerving integrity and untiring industry. In 1897, when tlie ])osition nf United States Dis- trict Judge for the Xorthern district of Cali- lornia was mado vacant by the ap])ointment of Judge W. W. Morrow to the United States Circuit beiicli. Judge Greene was very earn- estly and very strongly recommended to the President for appointment to fill such va- cancy, by many distinguished men of the bench and l)ar, and by many others prominent in ])rivate life. In these recommendations Judge (ireene was declared to be a man of ripe judg- ment, of superior ai)ility and unquestioned honor and integrity. They declared that he was liked best by those who knew him best, that he was distinguished for fearlessness in his decisions, and endowed with the courage so essential to the character of a good Judge, and they pointed particularly to his long and splendid record on the bench. We have had occasion, in sjjcaking of the strong men of our bench and bar, to refer to some of them as being strong also physically. Judge Greene inherited a splendid physique, and this, by reason of his exemplary habits, is still preserved to him. The trite phrase, "in the prime of life," applies to him now, and probabl}' wall for many years to come, al- though "three-score years and ten" are not far off. In 1869 Judge Greene married Anna Isabel, daughter of Mr. and Mrs. W. W. Webster, then of Maplewood, Massachusetts. Mrs. (jreene died in 1893. Their children are Carlton W., Mabel E., Ethel A., and Lau- rence L. CHARLES N. FOX. Charles Nelson Fox. Judge of the .Supreme Coiu't in 1889-90, was born in Redford, Wayne county, Michigan, in a log cabin, surrounded by a dense forest, on the 9th of March, 1829. Like all the pioneers of that country, his par- ents were poor, and such schooling as he re- ceived was had in the traditional log school- house, for a few months only in each year, and to attain this he was compelled to walk one. and sometimes two miles to school. Di- viding his time between the school and the farm until he was fifteen, at that age he re- lieved his parents of his support, with their approval, and went to Ann Arbor, determined to make his own living, and if possible work his way through the university, then just o])ened. Securing a place where he could work for his board and lodging, he matriculated at the imiversity, and spent some time in the study of Latin and Greek, when he was taken sick. This iin-olved a loss of six months in Chas. N. Fox History of the Bench and Bar of California. '03 his studies, and postponed for a year the pe- riod of his possible graduation. At that time the only course of study open at the university was the classical course. After much reflec- tion, young Fox concluded that in the struggle of that conclusion, but right or wrong, he which must be spent in the university would not be compensated by the benefits derived from the course of study then opened to him. He has many times since doubted the wisdom of life for a poor man, the four or five year.s acted upon it, and abandoned the university for a printing office, where he mastered every department of the printer's art, as then prac- ticed in Ann Arbor. At an early age he be- came somewhat noted as a country editor. From infancy he had known intimately and been a favorite of General Lewis Cass, and he early began to take an active part in politics. In 1848, when only nineteen years old, he made his first speech to a mass meeting, when, as president of the Young Men's Democratic Club of Ann Arbor, he opened the campaign of 1848 with a speech, 3.nd introduced General Cass, who had insi.<;ted that his young friend should speak first, and expressed his gratifica- tion at being introduced by one of his own boys. The General had before that offered Mr. Fox a place at West Point, which he had de- clined to take and which declension he has ever since regretted. At that time he pre- ferred the na\'y, b'lt into this the General re- fused to place him, unless he first got his father's consent — a thing which young Fox believed would be impossible, and so never made an effort. At twenty-one ne was made chief deputy m the office of the recorder of deeds of his county, and for two years was practically the chief of that office. During this period he was also elected city recorder of the city of Ann Arbor. A vacancy occurring m the office of mnyor, he S'^rved ex-officio in that capacity for a portion of the term. Retiring from public place, ■ he entered the law office of Kingslcy & Morgan to complete the study of the law. While yet a student in this office, he attracted the favorable notice of the great commercial agency of Bradstreet & Co., by his peculiar ability to "read be- tween the lines" and understand the motives and intentions of men — a faculty which he has «iver since retained in a large degree, — and he still is a trusted counsellor of that great <:f)mnicrcial house. He was admitted to the bar of the Supreme Court of Michigan in 1856, and in 1857 his parents and all otlier members of the family having already settled in Cali- fornia, he came hither, arriving in August of that year, immediately locating in the county of San Mateo. In November, a vacancy occur- ring in the office of district attorney, he was appointed to fill it, and by successive elections held that office for five years, when he declined further election. In the early struggles of the Spring Valley Water Works to gain a foothold in San Mateo county, he was retained against them, and for some time succeeded in preventing them from acquiring any rights necessary to the construc- tion of their works. Finally, having been beaten in all litigation, the company retained him to acquire such rights as they desired, and he at once went to work, and without litigation secured for them all that they had theretofore been seeking through the courts. He so man- aged the business of the company in that county that for ten years it had no suit there of any kind. Upon the organization of the San Francisco & San Jose Railroad Company. Mr. Fox be- came the local attorney of that corporation to secure the right of way through San Mateo county, and continued to act in that capacity until the road was sold out to Newhall & Co. During that time he became the general at- torney of Charles McLaughlin, and ultimately the attorney and president of the Western Pacific Railroad Company— a place which be held until that road was sold out to the Cen- tral Pacific Company. These duties having brought him to San Francisco, he was ap- pointed general attorney of the Spring Valley Water Works, more tlian tliirty-five year«! ago, and held that position until he wont on the Supreme bench in i88q. In his early practice in the State he becam.e S(;mcwhat noted as a criminal lawyer, and met with more than ordinary success in that line of practice, but after being so much engaged in corporation law, ho practically withdrew from criminal practice, and has since given that department of law very little attention. During Mr. Fox's incumbency of the offict" of district attorney, a statute took efiVrt re- iiuiring that delinquent taxes should bo col- lected by suit, and for two years nearly ail the heavy taxes of his county, San Mateo, wcrr contested, but never with success. Almost im- mediately upon retiring from office he was retained to defend against similar claims, and then raised the question of I lie unconstitu- tionality (if the revonno laws llicn in force, bv 704 History of the Bench and Bar of California. reason of the large exemption from taxation which were made by those laws. Upon this point he prepared an elaborate brief, which was not only used in the courts, but in the legislature, and he and others who subse- quently joined him in the contest, kept up the fight until at lasi tlie Supreme Court sus- tained the point and held the exemptions to be unconstitutional. The legislature then changed the laws, and since that time taxa- tion in this Slate has been perhaps more uni- form in any other stale in the Union. Mr. Fox was twice named, but refused to be a candidate, for judge of the old Twelfth District Court. Several times he was urged to accept legislative and congressional position, but always refused, except at the first session of the legislature under the new constitution of 1879, when he was chairman of the judi- ciary committee of the assembly. Chancellor Hartson, who was a member of the same body, said of Mr. Fox and the work that devolved upon him at that time : "I would rather spend the time of this session in the peniten- tiary than in his position." The constitution had wrouglit many radical changes. ' All the laws of the State had to be brought into harmony with it, and at least three-fourths of all the bills went to his com- mittee. While the statutes of that session sliow a great amount of work accomplished, the burden of his work and that upon which he did the State the best service, is found in the mass of bills which did not get into the stat- utes. It is said that in the hundred days he reported a thousand bills for indefinite post- ponement, and very few bills so reported were ever passed. Considering the rapidity with which one in his position was compelled to think and act, under such circumstances, it is a curious fact that every measure that was passed against his opposition, on the ground of unconstitutionality, and that has since come up for judicial determination, has been de- clared to be unconstitutional. Perhaps the most prominent of these was the revenue bill passed at that session, against which he voted and spoke, and filed a written protest. At the very next session the legislature passed a new bill, bringing it into harmony with the view'S which he then expressed. Judge Fox was commissioned by Governor Waterman a Justice of the Supreme Court in June, 1889. in place of Hon. Jackson Temple, resigned, and he served to the close of the following year. In the seventeen and a half months which covered Judge Fox's period on the Supreme bench he did a larger volume of work than any other man connected with the court, and much of it was in cases involving grave questions of corporation and constitutional law. His opinion in the Jessup case is the only one. so far as we know, that has ever been attacked, and that was only by the counsel for the los- ing side. It has now become the acknowledged rule of decision all over the United States. On a question of constitutional law, we believe he has never been overruled in any position taken by him. either on the bench, in the legis- lature, or at the bar. In one case which the United States Supreme Court decided against him, he told his client in advance that it would be so: his object was. however, to force a di- rect decision on the point involved, as dis- tinguished from an inferential one, so that he might use it in another case afterwards, and he succeeded.. For twenty-five years before his elevation to the Supreme bench, Mr. Fox had his office in San Francisco. Besides his duties as at- torney of the water company, he was engaged in general practice, about half of the time in partnership with A. and H. C. Campbell, and the balance of the time in partnership with M. B. Kellogg, until the year 1889. when F. R. King w^as added to the firm. Mr. King, whose father was the distinguished Thos. Starr King, withdrew altogether from the legal profession in 1895. Since that time Judge Fox has been in partnershiu with Mr. Roscoe S. Gray. Judge Fox has three children living, two of whom have married. Since the year 1875 he has resided in the city of Oakland. JAMES A. GIBSON. Ex-Judge James A. (iihson, one of the able men at the Los Angeles bar, is a native of Boston, Massachusetts, and was born August 21, 1852. He came to California in 1874 and located first at San Bernardino. He was ad- milted to the bar there, in the old Eighteenth District Court, June 13, 1879; and to the bar of the Supreme Court, April 19, 1882. In 1884 he was elected Superior Judge of San Ber- nardino county, on the Republican ticket, for the term of six years, from tlie first Monday in January, 1885, and served until in May, 1888, when he resigned. In the latter year he was appointed one of the commissioners of the Supreme Court. This office he held until E. C. Hart History of the Bench and Bar of California. 1()1 January i, 1891. He then resigned, and wont to San Diego, where he practiced law in part- nership with John D. Works and H. L. Rives. Removing to Los Angeles, in June. iSg". he formed a law partnership with John D. Bick- nell and W. J. Trask, under the firm name of Bicknell, Gibson & 'IVask, which still con- tinues. Judge Gibson is the vice-president of the American Bar .Association for California. He has been twice married. The death of his first wife caused his resignation as Supreme Court Commissioner. He has four children, two by his first wife and two by the present Airs. Gibson. E. D. HAM. The worthy Superior Judge of Napa county was born in Alabama in 1839. His father, a farmer, removed with his family to Arkansas in 1854. The son worked on the farm in summer, and attended a subscription school in winter. In 1857, through the aid of Hon. David Walker, of Fayetteville, he entered Ar- kansas College, afterwards studied law. and had just commenced practice, when the Civil War opened. He went north and joined the Union army under General Curtis, February 15, 1862. For his conduct on the field he received tm- qualified commendation from his superior offi- cers. Colonel B. O. Carr, one of General Curtis' stafif, said : "Ham was such a bright young fellow that he was soon given command of a corps of scouts, and before the close .of the war he was a Major." Judge Ham later was on the stafif of General John M. Schofield, who was afterwards Gen- eral-in-Chief of the United States army. The confidence the young Captain then in- spired was evidenced by an order issued by General Schofield at Cassville, October 1,3, 1862, directing all commanders in the army of the frontier to furnish the Captain, as chief of scouts, with whatever number of men he might require. His promotion to be Major followed the battle of Prairie Grove in De- cember, 1862. President Lincoln, in March, 1865, at the request of Major-General Steele and Governor Murphy, appointed Major Ham United States district attorney for the western district of Arkansas, comprising eleven counties, to which the Si.x Indian Nations were added. In 1868 he was appointed Judge of the Circuit Court for the fifth district of .•\rkansas, and occu- pied that bench until April i. 1874, when he came to California. He located at Napa, and began the practice of law. In 1890 he was elected as a Republican. Suprerior Judge of Napa county. He served the full term of six years, and was re-elected in 1896. Judge Ham is married, and has three grown daughters. E. C. HART. Elijah Carson Hart, a Judge of the Su- perior Court of Sacramento county, was born near Carson City, Nevada, in an immigrant wagon, his parents being at the time on their way across the plains, bound for California. It was in the year 1854. At the age of twelve years he began to learn the trade of printer, which being acquired, he worked thereat, set- ting type on the same newspaper, until he was twenty. He then became local reporter on the Marysville Daily Appeal. In the follow- ing year he took editorial charge of the Oro- ville Mercury, editing the paper for six months. He then went to Willows, now the county seat of Glenn county, and established the Journal, a weekly paper, which he pub- lished and edited for six years. Judge Hart began the study of law in 1884. It was at Sacramento, in the office of his brother, A. L. Hart, who had been attorney- general of the State for the years 1880-81-82. In August, 1885, he was admitted to prac- tice by the Supreme Court. In the following si)ring he was elected city attorney of Sac- ramento, and served the term of two years. He was elected a member of the assembly in the fall of 1888, for the twenty-eighth legis- lative session — which opened in January, 1889. He continued uninterruptedly in public life, being elected city attorney again in the spring of 1890, and, for a third time, two years later. He resigned the ])iace at the end of 1892. to enter the State senate, having been elected to rei)resent Sacramento county in that body. During all this period he kept in law prac- tice ill so far as it did not interfere with his Mriii-i:il duties. In the fall of 1896 he was elected a Judge ot" the Superior Court of Sacramento county, and went on llie l)enoli. just as his senatorial term expired, in January. 1897. His term will expire in January, 1903. He has held court for his I)rotlier Superior Judges in quite a number of oilier counties, jiresiding in many important cases. I'lu- Judge was married, ;it the age of 708 History of the Bench and Bar of California. twenty-one, to Miss Addie Vivian, a niece of the famous Indian fighter. Kit Carson. Hon. A. L. Rhodes ex-Justice of our Su- preme Court, *no\v a Judge of the Superior Court at San Jose, is an uncle of Judge Hart, and came across the plains in the same train of ox-teams with the Judge's parents. J. C. B. HEBBARD. J. C. B. Hebbard, Judge of the Superior Court of San Francisco, was born in Canada on April ii, 1854. He came to California in 1862. and was educated in the public schools of Nevada county and at the College of St. Augustine at Benicia. He was admitted to the bar by the Supreme Court in May, 1870. and began his law practice in San Francisco. He- was married in 1889 to Miss Martha Schroth, daughter of Charles Schroth, one of San Fran- cisco's well-known leading pioneers. Judge Hebbard was elected to the bench of the Su- perior Court of San Francisco in 1890, and re-elected in 1896. His current term ends in January, 1903. His name became particularly and deservedly familiar throughout the United States because of his judicial action in the celebrated case of Fox vs. Levy et al., uni- versally known as the' Hale & Norcross case. That case was commenced at San Francisco in the year 1891, by the plaintiff, a stockholder of the corporation. Hale & Norcross Silver Min- ing Company, who charged that defendants, some of whom were directors of the corpora- tion, having secured complete control of its affairs, conspired to defraud, and did, in fact, defraud it of property to the value of $2,- 100.000. Trial of the case was commenced on the i8th day of November, 1891, the result being that Judge Hebbard rendered a decision wlierehy he awarded to plaintiff a recovery of $1,011,835. and appointed a receiver to enforce collection of the judgment, to secure the ben- efit thereof to the stockholders of the corpora- tion. Upon an appeal from this judgment and order, the Supreme Court of the State, tak- ing occasion to advert to the large amount in controversy, the difficulties presented by the subject of litigation, the great length of the trial, the immense mass of evidence, and the ability, industry and ingenuity of counsel, whicli combined to raise an unusual number of difficult questions for consideration, re- duced the recovery awarded to plaintiff to the sum of $210,197.30, directed a new trial of the case as to certain issues, and affirmed the or- der api)ointing a receiver to collect the judg- ment. Afterwards the case encountered many vicis- situdes of law, the upshot being that in Octo- ber, 1898, plaintiff concluded to accept the re- covery first confirmed by the Supreme Court, rather than risk further uncertainties, and con- sented to a decision by which final judgment for that amount entered. Thereupon the re- ceiver, under the direction of Judge Hebbard, on November 7, 1898, collected for principal and interest on the judgment the sum of $304,- 447.72, and within thirty days thereafter paid the dividend of $1.50 per share declared out of said sum, to the stockholders of the company. Those cognizant of the merits of this fiercely contested lawsuit are unstinted in their praise of Judge Hebbard's fair and forceful action throughout the litigation, and its remarkably good results. Judge Hebbard presides in Department Four of the Superior Court, which has been one of the busiest departiuents of that court, and has most satisfactorily disposed of a great mass of important and complex judicial work. ADDISON C. HINKSON. A. C. Hinkson came from the State of Mis- souri, in 1852, when a mere boy, and located in Amador county. There, in 1865, he was elected county recorder and auditor, and at the expiration of his term was elected county clerk by a larger vote than was received by any candidate for any office in his county. At the expiration of his term as clerk he located in Sacramento and engaged in the practice of the law, and for twelve years was the partner of the late Judge J. W. Armstrong. Though he had always been a Democrat in politics, he was elected for three successive cAddison C. Hinkson History of the Bench and Bar of California. 711 term?, superintendent of public schools of Sacramento city, against a large Republican majority. He was a director of the Sacra- mento Free Library for eighteen years. In 1894, when an additional Superior Judgeship was provided for Sacramento county. Gov- ernor Budd appointed him to the place. The reputation which he acquired on that bench is illustrated by an editorial of the Sacra- mento Record-Union, a leading Republican paper of Sacramento, which was published when he retired from office. It is as fol- lows : "With the passing of the old year there re- tires from the Superior Court of this county a jurist whose failure to remain upon the bench is the cause of common expressions of regret among all the people. That failure was due to a remarkable and unusual com- bination of circumstances which in honor bound him to accept the situation. Judge Hinkson came to the bench as the first judge of the third department. It is simple jus- tice to say that when he was elevated to that position the breadth and judicial mind of the man and his special fitness for the place were not realized even by his nearest friends, since he had not pushed himself into notice, while modesty and unpretentious bearing had kept his real ability much in the background. But he proved, when once on the bench, to be one of the best judges. His peculiar fitness for the judicial office was at once made manifest, his breadth of mind, perfect impartiality, his inflexibility of purpose in doing what he conceived to be duty, regardless of conse- quences, or of persons, place or station, to individuals, enabled him to hold the scales of justice on such even balance as to elicit the admiration and praise of even those upon whom the judgments of the court descended. Aside from this, Judge Hink.son became known all over the State as the modern ex- emplar of judicial promptness and precision. His rules and practice in this regard became the terror of the laggard and evil doer and the admiration of the prompt. He held that the time of the court is the time of the peo])lc. and it is no more to be wasted and trilled with than is the money and property of the people. His inflexible demand that respect be paid the court and its processes, as representing the dignity and supremacy of the people, was enforced with such firmness and perfect impartiality as to awaken atten- tion everywhere and win for him the respect of the bar and the applause of citizens.' It may be said that those who suffered most under his conceptions of the majesty of the law and the dignity of the people's tribunal, are today loudest in commending his course. Judge Hinkson retires from the bench to a practice awaiting him with the proud dis- tinction of having done an important work in elevating the character of the bench in the estimation of the people. He proved to them it is not always the man who is most pretentious at the bar who is best fitted for the judicial office. That dignity, firmness, impartiality, studious habits and thoroughness are what the people respect in their courts, and will always sustain. Learned in the law, broadminded in view, sympathetic and tender, inflexible in the discharge of duty, having such profound reverence for the principles of justice that nothing could sway him in its administration to purposely deflect it a hair's breadth from its true course. Judge Hinkson retires after a brief career on the bench with the respect, admiration and regard of all the people." Judge Hinkson has, since his retirement from the bench been engaged in the practice of the law at Sacramento. Mr. C. A. Elliott, a most promising young lawyer, has been his partner for some years. JAMES B. HOLLAWAV. James Bledsoe Hollavvay, a veteran of the Los Angeles bar. was born on the 2d day of February. 1829. in Sumner county. Tennessee. He was educated in the common schools. On .April 15th. 1850. in c(inii)any with six other young men, he left his home for a trip across the plains to California, traveling with mule teams. They arrived at Nevada City, Cal., Oc- tober 4th. 1850. by what was called the Truckee route, all in good health, losing only one mule on the tri]). He worked in the placer mines during the winter near Auburn, Placer county: mined on tlie .\nierican river during the sum- mer of 1851. lie was one of the company of thirtrrn tli;il bnilt what w;is known as the Jones. Truman iJc Co. ditch, from the North Fork of the Cosunmes river to Diamond .Springs, in 1853. at a cost of $90,000. which was 111 It a success to the builders. Our friend lost his all. He borrowed $10.00 and left Diamond Springs by stage for Sacramento; paid $8.00 stage fare. $1.00 for breakfast, on the road, arrived the same day with one silver dollar. That was in May. 1854. He hired out as pilot on the Water Lily, a sidewhecl steamer then running on the Upper Sacramento river. He 12 History of the Bencli and Bar of California. got a salary of $300 per month. After working two months, he got the ague, and quit, and went north to Yreka. He mined on Humbug Creek, and was in the beginning of what is known as the "Klamath War," with the In- dians in 1855-6. He held a commission as First Lieutenant of the Siskiyou Guards. Con- tracting rheumatism, he returned to Sacra- mento in May, 1856. Mr. Hollaway was in San Francisco during the time of the Vigilance Committee of 1856, and saw Cora and Casey taken out of jail on that memorable Sunday. Going to Sonoma county, he bought a ranch on which a portion of the town of Cloverdale now stands, and went into the cattle business. He was reason- ably successful. He was twice elected consta- ble of the townshi]!. He removed to what is now Lake county in ih'6i. There he was elected justice of the peace in 1862. served one term. He was a member of the Court of Sessions. In 1863 he was elected County Judge, and served the term of four vears. He was re-elected in 1867, and served out the second term. He re- moved to Los Angeles county in 1872, locating near Downey. He has since been engaged in the practice of the law in the courts of that county. He was elected by the Democratic party to rep- resent that county in the assembly in the year 1877. After the end of the session, he re- turned to Downey. In 1882 he located at Los Angeles City, and opened an office in the Temple Block. In 1884 he entered into co- partnership with W. T. Kendrick. known bv the firm name of Hollaway & Kendrick. which continued until about 1895. Mr. Hollaway now resides at Monrovia, the "Gem of the Foot-hills," enjoying a delightful climate, and pure water among orange groves and banks of flowers. On the 2d day of February, 1901, he was seventy-two years of age, hale and hearty, and .shows the results of having lived over a half-centurv in California. RODNEY J. HUDSON. Judge Hudson was born at St. Helena, Cali- fornia, and is now forty-eight years old. He received his literary education at the Uni- versity of Michigan, at Ann Arbor. His law- education was acquired at Cumberland Uni- versity, Lebanon, Tennessee. He first began law practice at Los Angeles, as a partner of Anson Brunson, who was then the leading lawyer in Southern California. He remained with him two years, and was then elected district attorney of Los Angeles couiUy. He served out his term and then, by reason of ill health, moved to Lake county, California, and followed the practice there. In January, 1880, he took his seat as Superior Judge of that county, which he retained for eleven years. Upon his retiring from the bench in January, 1891, he resumed the practice of law. In Jan- uary, 1899, he removed to Hanford, Califor- nia, and began the practice of law there, in connection with John r. Pryor. That asso- ciation still continues. Judge Hudson's mother and father are both California pioneers, having crossed the plains from a Southern state before the gold seekers, in 1845. His father was an officer with Fre- mont, under the Bear flag. The "History of Napa and Lake Counties," published in 1881, has a fuller sketch of our subject. JOSEPH W. HUGHES. Joseph W. Hughes was born at F"ayette, Howard county. Missouri, on the loth day of June, i860. His parents were J. Romeo and Priscilla Ann Hughes, both of whom were na- tives of the State of Kentucky. His father's occupation was that of farmer. The Judge w^as educated at Central College. Fayette, Mis- souri. He came to California in February, 1882, and has since resided at Sacramento. He was admitted to practice law on the 4th day of May, 1886, in the Supreme Court of this State, and on the 12th day of December, 1892, was admitted in the Supreme Court of the United States. He was elected Judge of the Superior Court in November, 1896, and his term of office will expire on the ist day of History of the Bench and Bar of California. 713 January. 1903. He was married on the i8th day of April, 1893. to Nellie M. Stanley, daugh- ter of Lee Stanley, ex-sheriff of Sacramento county. Judge Hughes went on the bench an e.\- perienced and able lawyer, and his decisions and rulings as a Judge, as well as his manner of trying cases, and his general conduct of his important office have met the hearty ap- proval of the bar, and added greatly to his strength with the people. His continuance on the bench for a long period is to be taken for granted. A. W. HUTTON. Aurelius W. Hutton, ex-Superior Judge of Los Angeles county, was born in Greene county, Ala])ama, July 23, 1847. He was de- prived of his parents when a little child, his father dying in 1852, and his mother in 1854, and he was reared in the fatnily of his eldest sister, Mrs. D. H. Williams, whose husband was his guardian. He entered the University of Alabama, a military school, in 1863, becom- ing a member of the Alabama Corps Cadets. He was pursuing his studies there in April, 1865, when, shortly before the close of the Civil VV^ar, the institution was destroyed by the Federal forces. In the following Jan- uary lie began the study of law in the office of Bliss & Snedecor, in Gainsville, Alabama, Mr. Bliss was a lawyer of distinction, from New England, and had been associated with Joseph G. Baldwin, who became the great Cal- ifornia Judge. After reading a year and a half. Mr. Hutton entered the law department of the University of Virginia, being now twenty years of age. He covered the courses of study of both the junior and senior classes in one year, and graduated in June, 1868, a few weeks before bis twenty-first birthday, with the degree of B. L. He was admitted to prac- tice by the Supreme Court of Alabama in Jan- uary, 1869. Judge Hutton's professional career has been entirely cast in California, and in Los An- geles county. He started for this State in the month of his admission to the bar, sailing from New York City on January 23, and ar- riving at San Francisco, by way of Panama, February 15, 1869. Settling at Los Angeles within sixty days thereafter, he there began the business of his life. In December, 1872, he was elected city at- torney of Los Angeles, and was re-elected in 1874, serving four years. In that capacity he drafted the first regular city charter of Los Angeles, and the revised charter of 1876 — which were, in part, incorporated in tlie re- vised charter of 1878. When, by act of the legislature, of February 7, 1887, two additional Judges were added to the Superior bench of Los Angeles county, Judge Hutton was recommended to Governor Washington Bartlett for one of the appoint- ments. At the meeting of the bar, held to consider the merits of candidates, he received the endorsement, by a vote of 82 out of 104 votes cast. There were six candidates under consideration, and judge llutton received llie highest vote of ail. Iieing nominated on the first ballot. Ihe (Governor appointed him to the office, wliicli he held until the next general election, a period of nearly two years. He was nominated on the Democratic ticket for re-election, and r;ui some 800 votes ahead of 714 History of the Bench and Bar of California. his ticket, but the Republicans carried the county by a plurality of about 4,000. The Judge, at the end of his term, resumed the practice of law. Judge Hutton was appointed United States attorney pro tern, for the district of Southern Calitornia by Judge Field, in 1889, and after- wards was one of the special counsel, with Alexander Campbell, in the Itata case at the time of the threatened trouble with Chile. Judge Hutton was one of the original in- corporators of the San Gabriel Orange Grove Association — Indiana Colony — wliich founded the city of Pasadena. He married, in February, 1874. Miss Kate Travis, who was born in his own native state, and who came with her parents to California on the same steamer with him, just five years before. They have four daughters and two sons living. T. E. JONES. Theodore Eldon Jones, Judge of the Su- perior Court of Trinity county for the full period of twenty years that has elapsed since the court was created, was born in Herkimer county, New York, December 30, 1830. His father, Eldon Jones, a native of Wales, came to America early in life. Acquiring a competence, he invested it all in a sea-going vessel and a stock of merchandize, and sailed as super- cargo from New York City for a foreign port, in 1835. He was lost, with the vessel, at sea. His widow, mother of our subject, was a na- tive of New York state, her maiden name be- ing Ann Kingsbury, resided in Philadelphia for about five years after her husband's death, and then removed with her son, who was her only child, to Illinois. The boy there grew up to manhood, learning the printer's trade. He came to California, overland, in 1850, with two of his uncles, arriving at Hangtown, now Placerville, on the 20th of August. He settled in Trinity county in 1853. He there followed the occupation of miner, on Trinity River, until 1861. He continued to be interested in mines for ten years longer. The interval between our friend's life in mining camps and his long career on the bench was devoted to journalism. In 1861 he estab- lished the Trinity Gazette at Douglas City. Its publication ceased after one year, on ac- count of an exodus of the people to go into the Civil War, and a rush to new mining regions at Washoe and in Idaho. In the winter of 1867-68 he was a member of the assemblv from Trinitv. In 1871 he became editor of ilic Shasta Courier. After two years he returned to Weaverville,. with the intention of resuming mining, but accepted an offer to become editor of the Trinity Journal. His editorial service was ended by his election as County Judge, 1 in 1875, and he served out the four years' term • under the old constitution, which was super- seded by the present organic law in the first week of 1880. He then became, by election in the preceding fall, the first Superior Judge of Trinity county. He has been three times re-elected, and his present term will expire on the first Monday in January, 1903. Of course, it were idle to speak of the excellent judicial qualities of such a man, so long for- tified in the confidence of his people. Judge Jones was a Bell and Everett man ^ in the Presidential election of i860. He joined *■ the Union party at its organization in 1861, and upon its dissolution, in 1867. he united with the Republican party, and has always since acted with it. The Judge has done a good deal of literary work. A press writer said of him not long ago that the productions of his pen, in news- papers and magazines, are gems of their class, and that in his stories of mining life, which have been his especial field of literary labor, the peculiar charm of his style is best dis- played. The Judge is a member of the Masonic or- der, of the I. O. O. F.. A. O. U. W., and was one of the organizers in 1880 of the Old Set- tlers' Association of Trinity county, and has represented several of these orders in their grand councils. He has been thrice married, his first wife having been Sarah Jane Puter- man, who died at Sacramento ; his second wife was Mrs. Mary Barnes, nee Willey, who died in San Francisco. He was last married to Miss Clara L. Huggins, a native of Nova Scotia. A daughter by the first named is the wife of George I. Thompson, of Portland, Oregon. The Judge is the best authority to consult on all matters pertaining to the history of Trinity county. EDWARD INSKIP JONES. Judge Jones was born in Cincinnati. Ohio, December 3, 1844. He was brought by his parents to San Francisco, where the family .-•.rriverl in May, 1850. His primary education was in the public schools of San Francisco. He was present at Ede ill Chautauqua coimty. New York, when that countrv was an unbroken wilder- 726 History of the Bench and Bar of California. ness ; it was there they tir>t met and were married. They lived tliere for tliirty-eight years to- gether and had the usual privations and suc- cesses of pioneer life. The mother died at Westfield. N. Y., in i8;o. The father removed to San Leandro. Cal.. where he died in 18?=;. The children of John and Harriet Nye were two sons, Stephen G., and George. The lat- ter enlisted in the Union army in October, 1861, in the 9th New York Cavalry, and died of pneumonia at Alexandria, Va.. in June. 1862. (5n both the father's and mother's side Judge Ny^ is descended from Revolutionary stock. The earliest ancestor of the Nye family was Benjamin Nye, who was at Sandwich, Mass., as early as 1637. and all the American Nve^ are supposed to lie his descendants. Tlie Judge's great grandfather. Major Ben- jamin Nye, with six brothers, took part in the battle of Bunker Hill. The solid part of his education Stephen (i. Xye obtained at what he is pleased tu call the .\merican Uni- versity — the little brown -.clinol bouse of pio- neer times. Later on he prepared for college principally at Alfred Seminary, Allegheny County, N. Y., and afterwards entered Allegheny College at Meadville, Pa., at which he was graduated in 1858. For eighte«*n months after, be was prin- cipal of the Westfield Academy, and then entered as a student in the law office of Hon. T. P. Grosvenor, at Dunkirk, N. Y. In No- vember, 1861, he came to California, and earned his first money as a teacher in the nublic school at Centerville. Alameda coimty.. In the spring of 1862 he became law clerk in the office of Janes & Lake, of San Francisco, and was admitted to practice by the Supreme Cook. "Two Years Before the Mast." Two years was also the period of our su1)ji'crs study in Mr. Dana's office. He continued his i)rei)ara- tion for the bar in Harvard Law School, from whicli institution he was graduated in i8rK). with the degree of LL. B. Judge Otis began the practice of law in Bos- ton. After a few years at that bar, he removed to California, arriving here in 1875, and locat- ing at San Bernardino. He followed the pro- fession at that place for two years, in partner- ship with Hon. W. J. Curtis, who was district attorney at tliat time, the firm name being Curtis & Otis. Then changing his residence to San Francisco, he practiced there in partner- ship with Charles E. Wilson, under the style of Wilson & Otis. This was in 1880, and after four years, John J. Roche entered the firm, which continued some three years longer as Wilson, Otis & Roche. It was then dissolved. Judge Otis having returned to San Bernardino. At San Bernardino. Judge Otis again joined his old associate. Mr. Curtis, and this partner- shin lasted until the Judge's entry upon the office of Superior Judge in January. 1891. At the end of his six years' service on the bench. Judge Otis resumed law practice in partner- ship with Hon. F. W. Gregg. This association still exists, under the firm name of Otis & Gregg. Judge Otis resides in Redlands. a short distance from San Bernardino, having his office in the latter place. OVAL PIRKEV. Oval Pirkey was born in Alexandria. Ten- nessee. February 22, 1861. His maternal great grandfather was Chancellor Williams of that state, who is mentioned as a respectable legal authority in Kent's Commentaries, while his grandfather on the same side was a Circuit Judge and congressman in ante-bellum days, when learning, integrity and honor were pre- requisites to those positions in Tennessee. The greater part of Judge Pirkey's boyhood was passed at Canton, Missouri, where he attended Christian University, in which institution his father was a professor for twenty years, and then president. In 1885 he was admitted to the bar and be- g.m the practice of law in Washington Ter- ritory. In i8()8 he was elected Judge of the Superior Court on the Re])ublican ticket in (ilenn county, California, a comity witli a 1 )eniocratic majority of over three lumdred. \\v pri'sicled during tlie famous Murdock note case, at Willows, in .Vjuil and May, 1899, which was considered one of the most import- ant jury cases ever tried in the West. He was an able man at the bar. and on the bench he shows a deep knowledge of the law. and is prompt, cautious and firm. '34 History of the Bench and Bar of California. JOHN REYNOLDS. Juhn Rcyniilds. fx-Su])crior Judge of Santa Clara county, was horn in Bedford, West- chester county. -Ww ^'ork. on February 20. 1825. and received his education at the Union Academy of that town, conducted by his brother, Alexander G. Reynolds. Hon. W. H. Rob'inson, afterwards county judge of that county, and later a member of congress and collector of the port of New York, received his education with him at the same school, each going from it at about the same time to study his chosen profession. He studied law at Sing Sing. New York, in the office of his brother! S. F. Reynolds, afterwards judge of the Fourth District Comt of San Francisco. He was admitted to the bar by the Supreme Court of the state of New Wnk, and com- menced" to ijractice law in liis brother's otfice. f --am ^ and there continued for one year. Coming to California in tiie fall of 1853, he was admitted to practice by the Supreme Court of Cali- fornia in that year, opening an office in San Francisco, where he continued until the fall of 1871. He then located permanently at San Jose, and has ever since engaged in the prac- tice there, except when on the bench. He was a member of the first Republican State convention in 1856, chairman of the Repub- lican county committee in San Francisco dur- ing the presidential election of 1864, in which campaign he devoted his time exclusively, for seven weeks preceding the second election of Lincoln, to his duties as chairman of that com- mittee ; and has always been interested in po- litical tnatters, although never an active poli- tician. He was married in 1855 to Miss Emily Mar- shall of Sing Sing, New York. After forty- four years of happiness and devotion this com- panionship was terminated l)y the death of his wife in 1899. He was elected a member of the assembly in 1880, and was a member of tiiat body dur- ing the memorable session of the legislature in 1881. On account of certain combinations with which lie did not sympathize and which resulted in the defeat of the apportionment bill, he was not placed at the head of the judiciary cnnnniltee : l)ut it is well known tiiat no constitutional question arose in the committee, or the house, in which he was not consulted, and in but one instance was his opinion disregarded, and in that case his vote is found recorded in accordance with a subse- quent decision of the United States Circuit Court. Judge Reynolds" practice as an attorney has been in some of the most important suits instituted in this State. Actions in- volving titles to lands have been his spe- cialty, and in these his careful method and thorough research have been often commented upon. The most complicated suit, as some claim, ever had on the coast, was begun and managed ])y Jiim to the end. with no error in the slightest detail. This was the partition of Las Animas Rancho, covering the city of Gilroy. and many thousand acres of outside lands, and in which there were several hotly contested controversies, involving about one- eighth of the whole rancho, and which occu- pied the court weeks in trying. There were, about two thousand parties to the record in this action, which was pending several years. The careful, methodical, painstaking charac- ter of Judge Reynolds, together with his knowledge of the law, acquired by nearly forty years of study and practice, eminently fitted him to receive the appointment to the bench, at the death of Hon. David Belden, in 1878, at which time Governor Irwin appointed him to the Superior Judgeship of Santa Clara county. At the expiration of the term for which he was appointed the people of the county manifested their appreciation of the Governor's choice by electing Judge Reynolds to succeed himself, and he continued to oc- cupy the position niuil i8ijO. It would be unjust to Judge Reynolds to close this article without saying that he is a man of unspotted character, a gentleman hon- ored and esteemed by all, and a sturdy speci- men of the ideal lawver and citizen. History of the Bench and Bar of California. 735 A. L. RHODES. Augusius Loring Rhodes, the venerable Judge of [he Superior Court of Santa Clara countN. once Chief Justice of the Supreme Court, was born in Oneida county, New York, in 1821. He was admitted to the bar in In- diana in 1846, married in tlie same year, and came to California in 1854. After a few years devoted to farming, he began law practice at San Jose, in 1856. in partnership with P. O. Minor. In 1857 he ran for county judge, but was defeated by the Democratic candidate. In 1859 he was elected district attorney, as a Republican, his opponent being Charles R. Younger. In i860 he jvas elected State sen- ator for Santa Clara and Alameda counties. At the thirteenth session, 1862, he was chair- man of the senate judiciary committee. He was elected a justice of the Supreme Court in October, 1863, the first election after the number of justices had been increased from three to five. He drew a term of eight years, which he served. In October, 1871, he was elected for a full term of ten years, and served until the first week in 1880, when the new con- stitution took effect. On September 3. 1879, he was defeated by a small majority for Chief Justice by Robert F. Morrison. Democrat. He was Chief Justice of the court from Jan- uary, 1870, till January i, 1872. On the bench, as in the senate, he evinced extraordinary industry and devotion to his trusts. He wrote the opinion in Lick vs. Austin, 43 Cal. 590; dissented in the Chinese testimony case of the People vs. Brady, 40 Cal. 207; dissented in the local option case of ex-parte Wall. 48 Cal. 323, and in People vs. Cage (twice in jeopardy), 48 Cal. 331. He wrote the opinion knocking on the head the proposed Mont Eagle University. (See Hawes vs. Stebbins, 49 Cal. 372.) On July 23, 1886. he joined with the San Francisco Bar Association against the movement to reorganize the Su- preme Court. Judge Rhodes, on leaving the Supreme bench, formed a law partnership with .Mfred Barstow of San Francisco, and jiracticed at that bar with the same partner for the long- period of twenty years. During all this time he kept his residence at San Jose. He be- came Judge of the Superior Court of Santa Clara county, by appointment of Governor Gage, on September 22, 1899, in the place of Hon .A. S. Kittredge, deceased. In Novem- ber, 1900, he was elected for a full term, with- out opposition ; indeed, he was nominated l)y the Republican. Democratic and Good Gov- ernment parties. Judge Rhodes is a man of five feet, ten and one-half inches in height, and weighs 165 pounds. His complexion is light ; his hair was dark brown, now gray. He is active and alert in mind and body, sys- tematic and studious, and furnishes a splen- did illustration of a green old age. The golden wedding of himself and wife was celebrated in September. 1896. He has occupied his pres- ent residence since 1858. H. C. ROLFE. H. C. Rolfe was born in Maine in 1834, but when he was only a few weeks old his parents with their family moved into the then far West in the Mississippi valley. He came to Califor- nia when quite young. From 1850 to 1857 he spent his time in various parts of the State, took part in several campaigns against hostile Indians in Southern California, and worked several years at mining in Nevada county, gaining nothing but experience. In the fall of 1857 he commenced the study of law with William Pickett, who was then recently estab- lished in San Bernardino with a good law library, and who kindly gave young Rolfe the use of it for study, in return for what little assistance he could render. With but a common school education, he devoted his time to hard study. He was ad- mitted to the bar. and in 1861. was elected district attorney of the county for a term of two years, and was re-elected in 1863 for an- other term. At that time San Bernardino was on the remote frontier of what was called the "cow counties," a name used to designate the sparsely populated southern part of the State, of which the greatest part of the wealth, aside from the large ranchos. consisted of great herds of cattle roaming at large over the plains. There had at that time drifted into the county many reckless and lawless people with little regard for the rights of property or the good order of society. That was during the War of the Rebellion, and many of them ;it least pretended to be in open sympathy with tile Confederacy; and whether sincere or not in such pretense, it gave them an excuse for many of their lawless adventures and depredations. I'^rom San Bernardino it was too handy for them to skip off to Dixie, or go and hide in the wilds of Arizona or the Col- orado desert. Many of them did not take that much pains to evade the law, but remained and boldly set at defiance all law and author- ity. I'nder such circumstances it is evident that the office of public prosecutor required 786 History of the Bench and Bar of Califor some nerve and good judgment for a proper discharge of its duties. The many criminal convictions for state prison offenses in the count}' at that time show that the office was administered with rare courage and intelli- gence. On retiring from this arduous position Mr. Rolfe continued the practice of law until the creation of the eighteenth judicial dis- trict, composed of the counties of San Ber- nardino and San Diego, in February, 1872, when he was appointed judge of that district, by the Governor, to hold the office until the next ensuing election. Although he was a candidate to succeed himself for the full term, he was not elected, and resumed practice at San Bernardino. In 1878, at the special elec- tion for members of the State constitutional convention, he was elected joint delegate from the same two counties, and took an active part in the proceedings of that body. The work of the convention being ratified by the people, by the adoption of the constitution which it had prepared, his home constituency showed their appreciation of his services at the general election of 1879, by electing him judge of the Superior Court, which court had been created by the new constitution to take the place ot the former District and County Courts. At the expiration of his term he voluntarily re- tired from the bench to again resume practice at the bar. Judge Rolfe is married and has two mar- ried daughters and several grandchildren, and is still engaged in law practice at San Ber- nardino. RICHARD C. RUST. Richard C. Rust, Superior Judge of Ama- dor county, was born in Marysville, Califor- nia, October 19, 1855. He was married No- vember 30, 1887, to Miss L. G. Hosmer, a daughter of H. B. and M. V. (Taggart) Hos- mer. There are two children of the union, Richard Whiting, who was born December 3, 1889, and Helen, born December 28. 1896. In politics. Judge Rust is a Democrat. He re- ceived his early education in the public schools of Calaveras county. In March, 1876, he commenced the study of the law with O'Connor & Pardow, in San Francisco, remaining with .'\lfred A. Pardow, a member of that firm, until admitted to the Supreme Court. He also studied in San Fran- cisco under the late Edmond L. Gould and Hon. A. C. Adams, the latter once District Judge of the district comprising El Dorado, Amador and Calaveras counties. nia. Judge Rust was admitted to the Supreme Court bar on November 10, 1879; to the United States District Court, March 19, 1885, and to the United States Circuit Court, November II, 1887. He then practiced law in San Fran- cisco from 1879 to 1883, when he removed to Jackson, Amador county. There he formed a law partnership with Hon. A. Caminetti. This partnership continued until January i, 1887, at which time Mr. Caminetti went into politics. Judge Rust then formed a partner- ship with the late Hon. John A. Eagan, which continued until the death of Mr. Eagan. Before going on the bench, our subject served two terms as district attorney of Ama- dor count}'. In 1894 he was elected to fill the unexpired term of the Hon. C. B. Armstrong as Judge of the Superior Court of Amador county, made vacant by his death, and in 1896 was re- elected for a full term of six years, which will expire in January, 1903. Judge Rust is Grand President of the Order of Native Sons of the Golden West, having been elected at the session held at Oroville, in April, 1900. The Judge's father was Colonel Richard Rust, formerly of Marysville. His mother was Evalina P. Church. Thej' were natives of \'ermont. They came to California in 1849, Colonel Rust being secretary to the govern- ment commission to establish the boundary line between the United States and Mexico, and who resided at San Diego from 1849 to 1851. He held the position of Alcalde for San Diego county. He was elected county clerk of San Diego county at the first election after the admission of California to the Union. In 1851 he went to Marysville, and established the Marysville Express, a newspaper which he published until 1857. During the same time he published the Placer Herald at Auburn, Placer county. The Herald is still published at Auburn, and is one of the leading papers of Placer county. The old hand-power press is still in the office. It was while he was editing the Marysville Express that he fought the duel with Stidger. (See "Field of Honor.") In 1857 he sold out his interests in Marysville and moved to Sacramento, where he was em- ployed as editor of the State Journal until 1858. In 1859 he moved to Mokelumne Hill, becoming connected with the Calaveras Chron- icle, which he conducted until 1861. He then sold his interest and retired from active news- paper business, and purchased a homestead about ten miles above Mokelumne Hill, and A. A. Sanderson History of the Bench and Bar of California. 789 engaged in doincslic pursuits until the time of his deatli. which occurred August 13, 1872. His wife, the Judge's motlier, is si ill Hving. and is eighty-four years of age. A. A. SANDERSON. Austin A. Sanderson, a Judge of the Supe- rior Court of San Francisco for the term of six years, ending with the year 1896. was horn in New York. January 4th, 1848. He is of Puri- tan ancestry and Revolutionary stock, and was educated in the public schools of his native State. He was admitted to the bar of the Su- ])reme Court of New Jersey in the year 1879 He came to California the following year, located at San Francisco, and practiced there in association with the late Colin Campbell until his election as Superior Judge in 1890. When he was elected to the bench, his party ticket was defeated. He, and one other, were the only Democrats elected at that time. Dur- ing his term as Judge, many large and import- ant cases were tried before him, among them notably those 01 "Miller vs. Lu.x" to determine the interests in that vast estate, and the "Noe Suits." affecting the title to a large portion of the Mission district in San Francisco. Since he left the bench. Judge Sanderson has fol- lowed his profession. Judge Sanderson has a very large and gen- eral law practice, and is in receipt of a hand- some income. He was united in marriage on the 27th day of November, 1872, to Miss Ella Reddington, at Jamestown, New York, and iias three daughters. Judge Sanderson is a man of very jileasant manners, and is very po])ular. He is an able lawyer and a man of wide general information. He is now in the prime of life, and in llu- full tide of prosperity in his profession. JAMES M. SEAWEEL. Judge Seawell was born January 8. 18,^6. in Indian Territory, at Fort Gibson, where his f.itber. then a ca])tain in the United Stales army, was stationed. The captain. Washing- ton .Seawell. was born in Virginia in iSo-'. lie was a graduate of West Point Military .Acad- rm\-. and ^er\•(_•(l in the Indian wars in I'lorid.i and the war with Mexico. He was retired. February 20, 1862, at the age of sixty, for dis ability resulting from exposure while on duly, lie was colonel of the Sixth Infanty, and brevet brigadier-general. Coining to California in March, 1869, he resided on his ranch in So- noni.i county until 1873. He then removed to San Francisco, where he died in 1888 — on Jan- uary 8, his worthy son's birthday, "Jack.son's Day," as ibey siill observe it in New Orleans and other Soulhern cities. Judge Seawell was a pupil for a short lime at Georgetown College, D. C. He entered Har- vard University in 1853 ^^ 'i junior, and was graduated in 1855, with distinction. Then en- tering the law school of the University of Louisville, Kentucky, he was graduated there- from in 1857, with the degree of LL. B. For the ne.xt four years he resided at Philadel- phia, engaged in the practice of law, having first been admitted to the liar by the Supreme Court of Pennsylvania, in December, 1858. He came to California long in advance of his father, and before the latter was retired from the army. Admitted to the bar of our Supreme Court in 1861, he practiced at the bar of San Francisco for over thirty years, when he went on the bench, where we find him now. .After locating in that city, he first entered the office of Shafter, Goold & Dwinelle. afterwards becoming a partner of James McM. Shafter; so continuing down to the year 1871. Thereafter he practiced alone. The most celebrated case with which Jud.ge Seawell was connected as a lawyer, as we re- call (and we have known him for nearly the whole of his career in the metropolis), was the Black will case. James Black, who came to California long before the gold hunters of 1848-49, died in 1870, leaving a very large es- tate in Marin cotmty. He was married twice, Mrs. Burdell, wife of Dr. (ialen Hm-dell. a leading denlisl of San b'rancisco, was Black's only cliild. Ilei" mother, the first Mrs. Black, died in Dr. Burdell's operating chair, from the effects of chloroform, .\flerwards. Black mar- ried a Mrs. Pacheco. a widow with a large number of children. I'.y bis will, I'.lack left all of his |)roperly to liis la>t wife and iter chil- dren, to the exclusion of Mrs. Burdell. James .McM. Shafter and James M. Seawell were em- ployed to contest ibe will. The case was tried three times in .Marin county, the jury each lime disagreeing. ll was then ir.inslened to San l'"|-ancisco. and Iried before lion. M. II. Mvrick. Probate Judge, and a jury. This iri.il lasted three weeks. ;ind the jury rendered ;i verdict in f.i\'or of .Mrs. I'.nrdell. No mo- lion was matle for a new trial, nor was any ;ip])eal taken. The attorneys on the losing side were Alexander Campbell, now of Los .Angeles (q. v.) ; Sidney V. Smith, Sr. (q. v.), and Samuel M. Wilson ( c|. x.^ The ground of contest was thai P.lack was of unsound mind 740 History of the Bench and Bar of California. at the tinu' he made tlio will. Ex-District Judge J. B. Southard was called in as as- sociate counsel with Shafter & Seawell. After the third trial Shafter and Southard aban- doned all hope, but Seawell and Dr. Burdell nursed it along to victory. The three attor- neys. Snafter. Seawell and Southard, received no cash retainer, but large contingent fees. We have understood, on good authority, that Judge Seawell sold his interest for $23,000. The strong lawyer, James P. Treadwell (q. v.), regarded Judge Seawell as one of our ablest lawyers, and used to send him law busi- ness, being himself possessed of great wealth, and not being in regular practice. The Judge is a good Latin. Greek and German scholar. Judge Seawell was elected to the office of Superior Judge, as a Democrat, in November. 1892. He was re-elected in November. 1898. the Non-Partisans endorsing him ; and his present term will end in January, 1905. As a Judge he is calm and deliberate, always in earnest quest of facts, patient in hearing, and true in determination. He is of a contempla- tive countenance, and of unassuming yet mag- isterial bearing. There are very few Judges with manner so agreeable on the bench. The Judge married, at San Francisco, in 1865. the daughter of Rev. Dr. Ver Mehr, an Episcopal divine. His children are two grown sons, Victor F.. a business man of San Fran- cisco, and Harry W., an artist. GEORGE W. SCHELL. George W. Schell is a native of New York State. He received a good academic edu- cation, and taueht school before coming of age. He read law in the office of the distinguished Lyman Tremain in Albany, and was there admitted to the bar in 1861. He started for California in the same year, by way of Pan- ama, arriving at San Francisco October 6th. He proceeded at once to Knight's Ferry, Stan- islaus county, and entered upon the practice of law. In 1863 he was chosen county superin- tendent of public schools, being the only Re- publican elected in that Democratic county. He served the term of two years. From Sep- tember. 1864 to January, 1869, he was deputy United States collector of internal revenue. In the fall of 1873 he was elected County Judge and served from January i, 1874, for two years. He refused to be a candidate for re-election, preferring to follow the profes- sion. Judge Schell was a member (elected at large) of the constitutional convention of 1878. Governor Perkins appointed him. in 1880, a member of the board of State prison di- rectors, where he served four years, being president of the board two years of that per- iod. The Judge was a delegate to the Republi- can national convention which nominated James G. Blaine for president — Chicago. 1884. In 1888 he was one of the Harrison presidential electors. In June. 1890, he was appointed by the United States attorney-general special attorney for California, to conduct proceedings for the enforcement of the Chinese exclusion act. The government placed a high estimate on his services, and compensated him hand- somel}'. He served in this capacity one year, when the appropriation made by congress for this service was exhausted. Judge Schell located at Modesto when that place became the county seat in 1871. From that time until he removed to San Francisco in 1886. he enjoyed a large income from his professional practice, and there was probably no more conspicuous or more respected public man in his section of the State. He became the owner of considerable property. In San Fran- cisco he formed a partnershii) with Mr. John J. Scrivner. which continued from 1890 to 1896. Mr. Scrivner had. himself, only recently removed to Modesto, where the two gentle- men had property interests in common, which continued long after their law partnership in San Francisco had ceased. Judge Schell has been alone in the practice since that time. He has always been active and influential in the councils of his party. In 1899 he was one of the strongest opponents of the boss ele- ment in the Republican county convention of San Francisco, and led the reform forces to ^«t. •4 ^^5^ I Luc ten Sha.Tv History of the Bench and Bar of California. 743 a signal triumph. He was chairman of the committee on platform of that body. This was a large committee, some of the members of which made it generally known that he was the author of the platform that was reported and adopted. Judge Schell is an earnest, sincere man, descended from Revolutionary patriots on both sides of his house, and takes a deep interest in public affairs, especially in national, State and local politics. At the age of sixty, he is conducting a large and varied practice, and seems to be in his prime. In person he is well proportioned, not large- ly, but strongly framed and soundly constitu- tioned. He is capable of long and continued effort, and is devoted to his calling. Few men have been more active in both public and professional life. He was united in marriage in 1866 to Miss Sarah J. Chase, daughter of Dr. R. D. Chase, of Albany. N. Y. He has two children, Lena A. and Fred W. The latter is on the Examiner staff. LUCIEN SHAW. Lucien Shaw, Judge of the Superior Court of Los Angeles county, was born in Switzerland county, Indiana, March i, 1845. His father was William Shaw, a native of Scotland ; and his mother Linda Rous, was a native of England. The son lived on a farm in boyhood and youth. He was educated at the common school, and at an academy. He was graduated from the Indianapolis Law School in 1869, and practiced law at Bloomfield, Greene county, Indiana, until 1883. In that year he came to California, and has always since lived at Los Angeles, excepting two years' residence at Fresno. Judge Shaw was engaged in the practice of law when Governor Waterman appointed him to his present place on the Superior bench, to fill a vacancy, in March, 1889. He never held nor sought office till he was appointed Superior Judge. He got this appointment on the rec- ommendation of the bar without active seek- ing. He filled out the term, which ended in January, 1891, and continued on the bench, having been elected on the Republican ticket, in November previous, for a full term of six years. He was re-elected in November, 1896, and his ])rescnt term will expire in Januarv. 1903. The first case of public importance to come before Judge Shaw was Bigelow vs. City of Los Angeles, early in 1889, to enjoin the con- struction of the First-street viaduct bv the Cable Railway Company. By the Judge's re- fusing a temporary injunction pending the action a delay of at least two years in the building of the cable line to Boyle Heights was prevented. Judge Shaw presided at the second trial of the case of the People vs. Richard S. Heath, charged with the murder of Louis B. McWhirter, this trial occurring in March and April, 1894. It attracted public attention because of the tumultuous character of the procedings on the first trial, and be- cause of the prominence of some of the per- sons who were inentioned in connection with it. The Judge succeeded in maintaining first class order, and both sides were satisfied with the conduct of the case. Some of the other cases of importance which he has tried are the following: The City of Los Angeles vs. Pomeroy, the most important case ever tried in the county, in which he practically saved to the city its title to the water in the Los Angeles river ; Byrne vs. Drain, in which he held the charter was in force on street opening procedings ; Farmers' Canal Co. vs. Simmons, 1899, in Kern county ; and Fresno Canal & Irrigation Co. vs. Alta Irrigation District. Messrs. Lee & Scott, the prominent Los An- geles firm, who represented the city, have kindly stated the Pomeroy case as follows : "The suit of the City of Los Angeles vs. Pomeroy et al., was for the condemnation of lands f(^r the headworks of a municipal water system in the gravelly bottom lands through which the surface stream of the Los Angeles river flows. The defendants claimed that the underground waters in their lands were per- colating, belonged to them as the owners of the soil, and should be paid for in condemna- tion; the city claimed that they were properly a part of the underground stream of the river in whose waters the city as successor to the pui'lild, had paramount rights.* As the Su- preme Court says in affirming the judgment in favor of the city (124 Cal., 597-634) : "This is the pioneer case of its kind, so far as this Court is concerned." It involved the applica- tion of the common law rules as to under- ground streams to the entirely new conditions (^xisting in CdiiiUrios like SoutluTu California. Judge Siiaw's instructions to the jury ex- pressed most clearly and elaborately the law of the case as to the correct definition of tuuler- *By virtue of the original grant from Spain to the ancient Pueblo. — Editor. 744 History of the Bench and Bar of California. ground streams, the relations to the surface stream of adjacent and subjacent underground waters, and the respective rights and obliga- tions of the owners of the waters of the stream and of the soil ; and in his refusal to give cer- tain other instructions asked by defendants he established the proposition that the city, as the successor to the Pueblo, was not limited in its use of the waters of the river to the par- ticular purposes for which the Pueblo used it, or to the four square leagues of territory origi- nally embraced within its limits. He was in every instance upheld by the Supreme Court, and the case will always remain the leading case in ttie State upon these very important subjects. Its value in establishing water rights in Southern California, and especially to the City of Los Angeles, cannot be overesti- mated." The instructions in this Pomeroy case were very full and elaborate, on the subject of underground waters especially; they were all prepared by Judge Shaw, and involved a mod- ification of the generally accepted rule of the common law giving percolating waters to the owner of the soil, and the adaptation of the law to the new conditions found in arid coun- tries such as Southern California. They were in all respects upheld by the Supreme Court, and the case will always remain a leading case on that important subject of underground waters. The practical effect of the rulings was to preserve to the city its right to the water of the river, as, if the contrary rule had been adoi)ted, the water of the river would have been immediately drained away by ditches and tunnels made by private parties in the adjacent gravelly lands. It is also of great importance in settling the rights of many other water supplies in Southern Cali- fornia similarly situated. In Byrne vs. Drain, Judge Shaw held that since the amendment of 1896 to the constitu- tion the street opening law of March, 1889, ceased to be operative in Los Angeles, and the provisions of the city charter on the sub- ject revived and became the law controlling those proceedings. The decision was affirmed by the Supreme Court on appeal. Owing to his long experience on the I)ench. and the number of cases involving water rights which he has tried, he has often been called to preside in important cases in other counties. One of these was the Farmers' Canal Co. et al. vs. Miller & Lux, in Kern county, in iSgg, the trial lasting five weeks and requiring the determination of the rights to all the waters of Kern river, and the claims of some fifteen water companies thereto. An- other case was that of Fresno Canal & Irri- gation Co. vs. Aha Irrigation District, in Fresno, in 1900. the trial lasting seven weeks, with the result of settling the right to the » greater part of the flow of Kings river from which the great raisin district is supplied with water for irrigation. The Judge was married to Miss Hannah Hartley, of Michigan, on the 29th of July, 1873. M. L. SHORT. Montgomery Livingston Short was born in Ulster county, New York, August 4, 1851. While he was quite young his parents moved to Iowa, and from there crossed the plains in 1863, landing in San Jose, July 4 of that year. In 1874 tliey went to Tulare county, settling in the famous Mussel Slough district. Mr. Short left the public schools at the age of fifteen, and from that time he conducted his own edu- cation. For nine years he taught school — two years of which he was principal of the Han- ford schools. He studied law, passed examina- tion before the Supreme Court, and was ad- mitted to the bar in 1885. He first practiced in San Diego county, and was elected city at- torney of Oceanside. Resigning that position in 1891, he returned to Kings county, and on its organization became its first district attor- ney, to which position he was re-elected by an increased majority at the election of 1894. His earnestness and sincerity of character mark him as a steadily growing man. His careful and judicious methods of handling public prosecutions have saved the county thousands of dollars, while his extreme impartiality in conducting cases commands universal respect. In November, 1898, Mr. Short was elected to fill the unexpired term of Hon. Justin Ja- cobs for the office of Judge of the Superior Court of Kings county. On November 6, 1900, he was re-elected to the office of Superior Judge for a full term of six years. B. N. SMITH. Judge Smith, of the Los Angeles Superior Court, was born, August 13, 1839, in McHenry county, state of Illinois. He was the youngest of thirteen children. His parents were from New England. His grandfathers on both sides were officers in the Revolutionary War, and men of education and fortune. His father was a captain in the War of 1812. and a member of the New York legislature in 1832. Judge Smith was raised on a farm in Illi- Jeremiah F, Sullivan History of the Bench and Bar of California. 747 nois. He received a good English educalion with the higher mathematics and Latin, in the academies of northern IlHnois. He came to California in i860. He taught school, mined some, drove teams in freighting over the Sierra Nevada Mountains, and in the latter part of 1863 went back to Illinois and enlisted in a regiment that had been raised in his home place, and served as a private until the close of the Civil War. He then went to the Uni- versity of Michigan, and was graduated from the law department as L. B. He began the practice of law at Woodstock, the county seat of his home county in Illinois. He put out his shingle and went it alone, depending only on himself, although at the time the bar of that place was a strong one. He succeeded from the first. For thirteen years he was County Judge of that county. He came to Los Angeles in February, 1887, and took an active part in the Harrison cam- paign of the following year as a stump- speaker. He was elected Judge of the Supreme Court in i8go, and re-elected in 1896. Added to his great experience and high char- acter are other qualities that adorn the bench. He has deep legal knowledge, broad, general information, the judicial temper, the habit of .study, honesty of mind and patience in inves- tigation. He is always practical and sincere. The Judge is a man of family. His mother, Mrs. Mary Smith, who lived, like Thomas Parr, in three centuries, died at the Judge's home in Los Angeles, so recently as January II, 1901. She was born September 22, 1795. LUCAS F. SMITH. Judge Lucas F. Smith was born in Wells county, Indiana, in 1845. He worked on a farm until fifteen years of age, when he learned the printing business. In August, 1862, at the age of seventeen, he enlisted in Co. G, loist Regiment Indiana Volunteers, and served through the war, being honorably dis- charged in July, 1865. He was a member of the Fourteenth Army Corps, Army of the Cumberland, and served under General Rose- crans at Chickamauga, and under General Sherman in the Atlanta campaign, and in the march to the sea, and through the Caro- linas. He was present at the surrender of Cicneral Johnston's army in North Carolina. Then with his regiment he marched through Virginia to Washington City, and was in the grand review of May, 1865. After the war he was offered an appoint- ment at the West Point Military Academy, but declined it. and entered the University of Michigan, and was graduated from the law department in the spring of 1868. After vis- iting the Western states in search of a loca- tion, he settled at Bonham, Texas. He was elected county attorney of Fannin county in 1869, and was appointed district attorney of the Eleventh judicial district, composed of five counties, in 1870. In 1874 he formed a law partnership with Gov. J. W. Throck- morton and Judge Brown, at Sherman, Texas. Soon afterwards he was appointed L'nited States district attorney for New Mexico, which office he resigned to raise a comnany to fight the Apache Indians, who were then murdering the settlers indiscrim- inately. For this service, he w-as offered a commission in the regular army, but did not accept it. He then formed a law partner- ship with E. W. Crozier, Esq., son of ex- U. S. Senator Crozier, at St. Louis, Mo. While there, he was offered and accepted a law partnership with Judge J. M. Hurt, of Dallas. Texas. He continued with Judge Hurt until the latter was elected to the Ap- pellate Court bench of Texas in 1878, when he formed a law partnership with Col. W. L. Crawford, one of the ablest and best known lawyers in the Southwest. In 1882, he was married to Miss Delia Gouldey, of Louisiana, and has six children. In 1885 he visited Cali- fornia, and was so pleased with the State that he closed up his business in Texas and moved to Santa Cruz, where he engaged in the practice of law. In Xovembcr, 1896, he was elected Judge of the Superior Court, which position he now holds. JEREMIAH F. SULLIVAN. Jeremiah F. Sullivan was born at Canaan, Conn., on August 19, 1851. His parents, who were natives of Ireland, brought him with them to California at the age of eight months in April, 1852. His father, Michael Sulli- van, is represented as having been a man of judgment, wit, and excellent memory. Of little early schooling, Michael Sullivan was self-educated to a considerable degree. He was an ardent lover of American institu- tions, and was well-informed in the history of tile I'nited States. After arriving in Cali- fornia he worked as a miner for ten years in the mines of Nevada county. He was next foreman in a mine at Virginia City, Nevada. J. F. Sullivan's childhood was passed in Nevada City, Cal. He was in a private school until ten years old, when his parents removed to San Francisco. He attended St. Ignatius '48 History of the Bench and Bar of California. College for eight years, graduating therefrom as bachelor of arts. He afterward received from that institution the degree of master of arts. He taught in that same college in the classics and mathematics, and at the same time studied law. Continuing his law read- ing for two years more in the office of a well- known San Francisco firm, he was admitted to practice in the Supreme Court of the State in 1874. He began the practice at once in that city. In 1877 he was elected a mem- ber of the board of education. In 1879 he was elected a Judge of the Superior Court, being nominated by the Democrats and en- dorsed by the Workingmen's party. He was the youngest of twelve judges elected at that time. Among the cases submitted to him for ad.iudicati(m was that of Burke against Flood, one of a number of cases brought by the stockholders of the California and Con- solidated Virginia mines against the bonanza firm, in which the latter, as trustees, were charged with fraud in the diversion and ap- propriation of the profits of the mines. This suit, upon which the rest depended, the same questions arising in them all, and involving upward of a million dollars, he decided in favor of the shareholders. It was never appealed, but was settled outside of the court by compromise. On December 24, 1884, Judge Sullivan de- cided the case with which his name will ever be inseparably associated, that of Sarah Althea Hill against ex-Senator William Sharon, a history of which remarkable con- troversy will be found elsewhere in this volume. The Judge was re-elected to the Superior Court bench for a term of six years, beginning with January i, 1885. In 1886, he was nomi- nated by the Democratic party for Justice of the Supreme Court, and was defeated. In 1888 he was again nominated, and, although the city of San Francisco gave him the un- paralleled majority of 8,000, he was defeated by Hon. John D. Works, of San Diego, for whom the southern part of the State, as a result of a great increase of population, cast a phenomenal vote. Judge Sullivan resigned from the Superior Court bench in 1889, for the same reason that afterwards influenced Supreme Judge Pater- son and which has at times controlled the like action of other Supreme and Superior Judges, namely, because the practice of law was of higher consequence from a financial standpoint. He formed a partnership with his brother. Matthew I. Sullivan, which still ex- ists. The two brothers make a strong com- l)inalit)n. tlie junior member being also a man of strong legal talent. The firm has ^ been in the full tide of prosperity since it ■ was established, over ten years ago. * Judge Sullivan was united in marriage on September 13. 1876, to Miss Helen Bliss, daughter of George D. Bliss, a California pioneer, who had amassed a fortune in the j cattle business. Judge Sullivan has been president of the Young Men's Institute, and has been promi- nciU in the fraternal and benevolent work of other Catholic societies. In an address on St. Patrick's day, 1886, in San Francisco, he said: ■'It is not to be wondered at that the Irish people, proscribed mainly on account of their religion, should prize the mystic bond that holds them together in the embrace of an enduring nationality. To no one who has studied the history of Ireland can it seem strange that the Irishman's loyalty to his race and his faith should be blended in a man- ner so unique. It is not because the Irish Catholic does not understand and fully appre- ciate the relative allegiance that he owes to his government and his God. The Catholic citizens of the United States do not desire a union of church and State, a blending of func- tions essential!}' distinct. They do not wish, nor would they consent to. the ascendancy of any church within the State. The Irishman would be the first, and rightly so, to resent the wrongs of a system under which he him- self has suflfered so long and so grievously. Grattan. the leader and the beloved of all the Irish people, as other leaders before hiin and since, was a Protestant. He expressed the sentiment of Catholic Ireland when he said: 'We hold the right of private judgment in matters of religion to be as sacred in others as in ourselves' ; also when he said, 'The Irish Protestant can never be free till the Irish Catholic shall cease to be a slave.' " A. M. STEPHENS. .\lln.Tl M. Stephens was born in Tennessee, March 22, 1846. His father. Colonel William H. Stephens, was a prominent lawyer of that slate. A. M. Stephens was educated at the University of Mississinni. and studied law with L. Q. C. Lamar at that institution. He after- wards attended the Lebanon, Tennessee, Law School. He began practice in January. 1868, at Memphis. He was elected district attorney of the Circuit Court of Shelby county, of whicli Memphis is the county seat, in 1870. He practiced law at Memphis until 1874. He then moved to Los Angeles. California. He was elected County Judge of Los Angeles county in 1877. and served until the County Court was abolished by the adoption of the new consti- tution, in January. 1880. Since that time he has been engaged in active i)ractice at Los D. K. Trask History of the Bench and Bar of California. '51 Angeles. His two oldest sons. William W. Stephens and Albert M. Stephens, Jr.. arc members of the bar. and associated with him. His wife was the daughter of Major M. J. Wicks of Memphis, to whom he was married in 1870. D. K. TRASK. Dummer Kiah Trask, a Judge of the Su- perior Court of Los Angeles county, was born in Cincinnati. Ohio. July 17. i860. He is de- scended from Captain William Traske. one of the five "Old Planters" of Salem. Massa- chusetts, who located there in 1628. His par- ents removed to Jefferson, Maine, when he was but a year old, and he grew up there. When he was six years old his father died. His mother still occupies the old homestead in Jefferson, at a great age. Our subject, having attended the district school, and worked in summer on the farms and in the mills of his neighborhood, began teaching school at the age of seventeen. While thus employed he also attended the Nichols Latin School at Lewiston. He afterwards graduated from the Waterville Classical In- stitute. Judge Trask came to California in May. 1882, and located first in San Joaquin county. He taught school, served as a member of the board of education, and was principal of the Stockton Business College and Normal Insti- tute. At this institution he had under his in- struction at different times several hundred teachers and business men from all parts of the Pacific Coast. Judge Trask gave up teaching in 1889. and having prepared himself for the l)ar. he lo- cated in Los Angeles, in 1890, and commenced practice. He was prosecuting a fine law busi- ness when, in November. 1898, Superior Judge Van Dyke was elected to the Supreme bench. Governor Budd appointed our subject to serve as Superior Judge for the unexpired term of two years. Tlie nrw Judiie'in this period showed such impartiality and industry, and brought such general ability to the discharge of his duties, that, at the general election of November, 1900, although he was a Demo- crat, and his party was in a hopeless minority, he was elected his own successor for a full term of six years. During Judge Trask's two years on the bench, thus far. a number of appeals liave lieen taken from his decisions, but he has al- ways been sustained by the Supreme Court. Tlie Judge has always kept alive his interest in the cause of education. He was a member of the Los Aneeles City board of education for 189,^94- He is prominent in the order of Knights of Pythias. He is Grand Prelate of the order in this State. JAMES D. THORNTON. James Dabney 'I'hornlon, who was a justice of the Supreme Court for the period of eleven years, beginning with the inauguration of the present constitution and the organization of the court in January, 1880, was born at his fathers country residence, Oak Hill, Cumber- land county, Virginia, January 18, 1823. His father, William Mynn Thornton, was a farmer, planter and merchant, and of English ances- try. His mother, Anderson, was of Scotch- Huguenot lineage. The son in boyhood at- tended the grammar and classical schools of his neighborhood, the principals and teachers of which were nearly all able instructors, col- lege graduates, and of high family. In the fall of 1838 he entered the University of Vir- ginia, where he took a three years' course. That great institution, founded by Jefferson, was divided into various schools, each issuing diplomas. Our subject was duly graduated from the schools of ancient languages, modern languages, chemistry, natural philosophy, moral philosophy, and received certificates of pro- ficiency in political economy and geology and mineralogy. h was now July. 1841, and he began read- ing law in iiis native county. He studied alone, but had the counsel of II. P. Irving (late of the San Francisco bar), who was his ])reccptor. if he had any. From the fall of 1842 to the fall of 1845 he was clerk in a commission house in Richmond for the sale of tobacco and other produce. During this la- borious period he kept at his law books at night. In 1847 he made a visit to Alabama. On February 17, 1848, he married, at Eutaw, (ircen county, in that state. Miss Sarah, daugh- ter of Harry I. Thornton. The lady, who is still living, is no 1)1o.h1 relative of his. Her f.itluT, who was llien a distinguished lawyer. arrived in California (Ml January i. i85_', liav- ing been appointed by President Fillmore, in 1851. one of the United States commission- ers on California land claims. He died at San Francisco in January. 1861. He was the father (if the Harry I. Tliornton who won distinc- tion in law and pc^itics. and on the battle field, who is affectionately remembered all over the coast, and who died at Fresno, in 752 History of the Bench and Bar of California. 1895. His widow. Lucy Crittenden 'riiornton, survived until 1885, reaching the age of eighty- three years. Returning, for a brief season, to Virginia, Mr. Thornton went back to Alabama to live, in November, 1848. He was admitted to the bar in that state in February, 1849, and practiced there until the spring of 1854, when he came to California, taking steamer at New Orleans on May 22. and arriving at San Francisco on the 14th of June. He was admitted to the bar of our Supreme Court in 1855. From that time down to as late as 1900 he followed the profession at San Francisco, excepting the considerable period when he was on the bench, and an intermission of some fifteen months during the Civil War. when, like Solomon Heydenfeldt. Gregory Yale, A. P. Crittenden. Volney E. Howard. Edward J. Pringle. and other strong and bright men from the South- ern States, he refused to take the iron-clad test oath prescribed by the legislature for practicing attorneys. He did take that oath, however, after holding out for the time stated. Immediately after his arrival, our friend joined the law firm of Thornton & Williams (the elder H. I. Thornton and John J. Wil- liams), which now became Thornton. Wil- liams & Inornton. The partnership was ar- ranged before he left the South. Upon the death of the senior member, in 1861. the firm became Williams & Thornton, and so con- tinued until Mr. Thornton became judge of the Twenty-third Judicial District Court. San Francisco. This was a newly-created tribunal. and Judge Thornton was the only occupant of its bench. He was appointed by Governor Irwin, and served from April. 1878, to the end of 1879. when the court passed away with the old constitution. In the fall of 1879 Judge Thornton was elected, as a Democrat, one of the associate justices of the Supreme Court, and so became one of the first members of that tribunal un- der the present constitution, adopted in that year. He and Justice McKinstry. at the or- ganization of the court, in January. 1880. drew the longest terms — eleven years. Judge 'i'hnrn- ton served out his term. It is worth noting that in the great case of the Spring Valley Water Company vs. the City of San Fran- cisco, he filed a dissenting opinion in favor of the city. Attention may also be specially directed to his opinion in the notable partition suit of Emeric vs. Alvarado in 63d California Reports, pace 529. The Judge has always been a Christian man. and has long been an elder in St. John's Pres- byterian Church; and in this connection it is of interest to refer to his remarks from the Supreme bench when the death of Judge Sam- uel Bell McKee was announced. March 10. 1887, in which the words occur: "He was a believer in the religion of Jesus Christ." At a meeting of the San Francisco Presbytery on March 3. 1887, he, by appointment, read an original paper, entitled "A Voice from the Pew to the Pulpit." The Judge is a man of small means, own- ing his own home in the great city. Both he and Mrs. Thornton are in vigorous health. They have had eleven children, of whom six are living — three sons and three daughters. The sons are Crittenden Thornton, the well- known San Francisco attorney ; William, a Inisiness man of that city : and John, a lawyer at Nome. Alaska. The daughters are Eliza- beth, the wife of Admiral Watson of the U. S. Navy ; Margaret, wife of Abbot Kinney of Los Angeles, a business man and orchard- ist. who is also a man of a high order of ability as a general writer, and is the author of several books ; and Miss Virginia, who re- sides with her parents. J. M. TROUTT. James Morris Troutt. a San Francisco Su- perior Judge since January, 1891, was born in Roxbury (now a part of Boston), Mass., De- cember 20th, 1847. He came to California in the fall of 1853, and has always since lived ai San Francisco. His father. Hiram J. M. Troutt, arrived in that city in March, 1850, via Cape Horn. The son attended the public schools and in 1871 was graduated at Harvard College. He was admitted to tlic bar of the Supreme Court of California in August, 1874. In 1877 he and Ramon E. Wilson, now de- ceased, became partners under the firm name of Troutt & Wilson. Subsequently Mr. Wilson became a partner of Judge M. M. Estee. In 1881, Judge Jas. C. Gary and Mr. Troutt be- came partners in law practice. In 1882 the consolidated Republican conven- tions nominated Mr. Troutt for the Superior bench, with Judges Waymire and Allen, and Columbus Bartlett. His party lost everywhere in California in that campaign. In 1885 and 1886 he was first assistant district attorney in San Francisco. In 1890. he was elected to the Superior bench, for the unexpired term of Judge T. K. Wilson, resigned, and has since History of the Bench and Bar of California. 53 been elected twice for a term of six years. His present term will expire in January, 1005. Judge Troutt was initiated in Ophir Lodge, No. 171, I. O. (). F., in 1879, and soon became Noble Grand. He also passed the chairs of Oriental Encampment, and then joined the Pa- triarchs Militant. He was degree master of Excelsior Lodge No. 2 for several terms, re- signing on account of illness. He was chosen by the delegates of the general relief commit- tee as president of that admirable body. He assisted in the organization of "The Odd Fel- lows' Literary and Social Club," and was its third president, tlie late Walter B. Lyon having been its first president. He and his wife are members of Templar Rebekah Lodge. In i8g6 he became associated with the Ma- sonic Fraternitv on the recommendation of Reuben H. I.ldycl, and in Deccnilier, i8g8. he was elected Worshipful Master of Oriental Lodge No. 144, F. and A. M., and is now Past Master. He holds the office of '"King" of San Francisco Chapter of Royal Arch Masons, and is now I^asl High Priest. He is a Knisrhl Temijlar of California Commanderv, and a Mystic Shriner of Islam 1 emple. and also a Scottish Rite Mason, having received thirty degrees. Wv has passed tlie eh;iii"s of I'idelity Lod< known .almost from its infancy. ;uid almosi from his own infanc\'. I lis heart heats tor his kind, and if he had the dispensing of haj)- piness, he would make it universal, and hu- man experience would be all exempt from ill. The Judge was married at San Francisco, .\pril 29, 1890. to Miss Lu May Kendall. They have no child. The decision of Judge Troutt in the matter of the application of Mrs. Craven for a family allowance out of the estate of James G. Fair was rendered on the loth of August, 1900. The petitioner, as Nettie R. Fair, made her applica- tion in April. 1899, praying for an order of court directing that the sum of five thousand dollars i)er month be paid out of the estate to her as the widow of deceased. The petition was ()])posed by the executors and heirs, on the principal ground that petitioner was not the widow of the deceased, Jndge Troutt found that she was not such widow, and de- nied her application. We give in full the carefidly prepared syllabus of the Judge's writ- ten opinion in this matter, which is of de- cided interest, and should be read in con- nection with the article on the Fair trust and will case, on pages .^,^5-3-)5 of this History. It is as follows : 1. Petitioner claimed to have entered into a contract of marriage with Senator Fair on May 2;^. 1892, and ])roduced a writing read- ing : "San Francisco, Cal,. May 2^, 1892. "I take Nettie R. Craven to be my lawful wife. "J.\MES G. F.MR. "I take for my l.iwfid husband James G. Fair. "Nicttik R. Cr.wen." 2. This writiu" if gniiiiiw, merely con- stituted a formal consent to become husband and wife; hence the story of its strange ex- perience need not be told. No wedding ring, or present, was given to petitioner. On June isi, following the contract, she left for the East ; he did not go to the boat or train to say good-bye ; and she occupied a lower berth in a Pullman sleeper. 3. No license permitting a m.arriage was ever proctuxd. Nor was the marriage ever solemnized in pursuance of Sections 55, 68. 70, 71, 72, 73 and 74, Civil Code, unless cer- tain evidence introduced by her establishes that a marriage ceremony was performed at Sausalito, Marin county, California, in July or AuiTust. 1802, by a Justice of the Peace. n.inied Simpton. 4. .Although pi'iiiioner s.ivs th.it she and .Senator F;n'r went to Sausalito to be married by a Justice of the Peace, in July or .Vugust, i8()2, l)ecause the .Senator desired to satisfy and placate petitioner's daughter: yet it ajipcars that in January, l8()3, when her daughter vis- ited San Francisco and met the Senator nolh- inir w;is ever said to her daughter by Senator h'air from which any inference could be drawn ih.it ;inv marriage had been solenmized be- tween her mother and himself by any Justice of the Peace, 754 History of the Bench and Bar of California. 5. During a period of seven years succeed- ing this Sausalito episode, and until after her petition was filed herein, she made no attempt to obtain any information respecting tlie name or the reeurds of the Justice of the Peace who solemnized her marriage to the Senator ; but in July or August, 1899, through Louis F. Dunand, she secured the services of Adolph Sylva to look up the record of her marriage by a Justice of the Peace of Sausalito. One of her attorneys gave her $200 to pay Sylva as a retainer if she thought best ; she paid it to Dunand and he paid it to Sylva ; and on a second trip to Sausalito in July or August, 1899. Sylva brought Simpton to her, and he addressed her as "Mrs. Fair." She says she did not agree to pay Sylva anything besides the $200, or to pay Simpton anything ; but she made a written contract with Dunand to pay him $30,000 for any services that she might want him to perform anywhere and in any matter. 6. The court does not hesitate to declare the story of the Sausalito ceremony to be a most improbal)lc and incredible one. To es- tablish it to be a fabrication, needs not the contradiction of Justice Simpton, nor the e.x- planations of Dunand or Sylva. 7. Marriage is defined by Section 55, of our Civil Code, to be a personal relation aris- ing out of a civil contract, to which the con- sent of parties capable of making it is necessary. Consent alone will not constitute marriage ; it must be followed by a solemnization, or by a mutual assumption of marital rights, duties or obligations. 8. They did not live together, they did not have a common home, or a common name. She was never addressed otherwise than as "Mrs. Craven." 9. Petitioner, after Senator Fair's death, produced a "will," written in lead pencil, which she testified Senator Fair wrote and delivered to her in her house, in her presence, on Sep- tember 24, 1894, in which she was not men- tioned; and she also produced two "deeds" of valuable property, which she also testified that Senator Fair gave to her for her support, on the same day that he wrote his will in lead pencil in her house, the income of which was $d.ooo per month ; these deeds were not then acknowledged, she returned them to him to be acknowledged, and he returned them to her again duly acknowledged, in December, 1894. ID. This pencil zc;// and these deeds were attacked by respondents and considerable evi- dence offered to prove that they were forger- ies. II. Theodore .\ytka. one of the expert wit- nesses, aptly and admirably demonstrated in this proceeding the facility with which a per- son's handwriting may be simulated. He placed a genuine writing upon glass which had been substituted for the cover of a box, putting a lighted candle within the box and beneath the glass. A sheet of paper was placed upon tlie genuine writing and the letters could be distinctly seen and could be easily traced ; and he wrote words, which w^ere dictated to liim, by tracing letters, and sometimes whole words, that were in the genuine writing. This was called the "Transparency Tracing Method." This sanie expert, by the use of a gelatine-celluloid sheet, so called, traced va- rious words written in certain lines of this will and placed them over the same words in other lines of the will, and the letters su- perposed — they occupied exactly the same space, were exactly the same length, and ex- actly the same distance and the same peculiar correspondence with each other existed. 12. The court is convinced beyond all doubt that the pcneil zvill and the deeds were not written or signed or delivered by Senator Fair, but that they are forgeries. 13. Senator Fair died December 28, 1894: the next morning the petitioner read in one of the newspapers a statement from his last will dated September 21, 1894. wherein he declared that he was not married ; yet she never as- serted that she was his widow until June 25, 1896, when questioned on the subject as a witness before the court. 14. Under the law of California, where there is no solemnization there is no assump- tion of marital rights, duties or obligations, until the commencement of cohabitation ; and by "cohabitation" is not meant simply the grat- ification of the sexual passion, but "to live or dwell together, to have the same habita- tion, so that where one lives and dwells there does the other live and dwell also" (Yardley's Estate, 75 Pa. St. 207 ; Sharon vs. Sharon, 79 Cal., 670) ; a mere introduction of a woman as a wife is not sufficient to prove a marriage where there is no proof of a present contract of marriage, and that the parties lived or dwelt together in the same habitation : and a mere stopping together as transient guests at an hotel during a short journey does not make the parties habitants of the hotel or prove co- habitation. 15. Other cases bearing upon this question are: White vs. White, 82 Cal., 427; Hinckley vs. Ayres. 105 Cal., 357 ; Hite vs. Hite, 124 Cal.. 389; Harron vs. Harron, 60 Pacific Re- porter, 932. 16. The petitioner never became the wife, and she is not the widow of James G. Fair, deceased. EDWIN P. UNANGST. Edwin P. Unangst, Judge of the Superior Court of San Luis Obispo county, was born in Warren county. New Jersey, January 2, 1858. His parents, Jacob S. and Sarah, were both descendants of German families, for many years living m the eastern part of Pennsylva- nia. Judge Unangst lived with his parents in New Jersey until fourteen years of age, when the whole family removed to Nebraska and settled near Lincoln. His parents' means were extremely limited. He attended the pub- lic schools, and on January 4, 1875, entered the preparatory school of the State University, at the beginning of the winter term. After completing the two years' course in the pre- I History of the Bench and Bar of California. 755 paratory school, and a four years' classical course in the university, he was graduated, June. 1881. with the title of A. B. He sup- ported himself by teaching and labor during vacations, and remaining out of college one year to teach. After graduating, he was prin- cipal of the public schools of Geneva, Ne- braska. This position he resigned in March, 1882, and went to Utah and engaged in rail- road surveying in the Wasatch Mountains, north of Ogden. He remained with the sur- veying party for a little over a year, and then came to California in the summer of 1883. He entered the junior class of Hastings College of the Law at San Francisco as a non-resident student in the same year, and having com- pleted the courses of the junior and middle classes, was admitted to the senior class of 1885-86. He was admitted to practice upon examination before the Supreme Court at San Francisco, February i, 1886, and located at San Luis Obispo, in June, 1886. In 1887 there was formed the law firm of Earll, Unangst & Earll, with Hon. Warner Earll, ex-Justice of the Supreme Court of Nevada, and his son, A. R. Earll. This firm was dissolved by the death of Judge Earll, and the election of A. R. Earll to the office of district attorney of San Luis Obispo county in the year 1888. Judge Unangst continued law practice alone till he formed a partnership with G. Ward Kemp (now of Seattle), in June 1895, which partnership was dissolved upon the election of Judge Unangst to his present office of Su- l)eri()r Judge in November, i8g6. The Judge was a member of the bo.ud of trustees of the city of San Luis (Jbispo from January, 1894, till his election as Judge of the Superior Court, when he resigned from that board. He was President of the board of trus- tees from April, 1894, till his resignation. On February 27, 1889, the Judge was married to Anita Murray, daughter of Walter Murray, a member of Stevenson's Regiment, who was one of the pioneer attorneys of San Luis Obispo county, and Judge of the District Court of the -First Judicial district of California, em- bracing the counties of San Luis Obispo, Santa Barbara and Ventura, at the time of his death in 1875. Judge Unangst ran for the office of Superior Judge at the election of 1896 against Hon. V. A. Gregg, the then incumbent, and William Shipsey, Gregg receiving 1134 votes, Shipsey 1 121, and Unangst 1414. His office has been a busy one. The county embraces the large area of 3500 square miles, and has a popula- tion of some 17,000 people. The interests in the count}^ are diversified, giving rise to al- most every class of litigation. During the period of little over three and a half years of incumbency, the Register of Actions shows that there have been commenced in civil and criminal cases and probate matters, something over HOC cases. The Judge is on the Democratic side in politics. WILLL\M C. VAN FLEET. William Cary Van Fleet, a Justice of the State Supreme Court from April, 1894, until January, 1899, was born in Ohio, March 24, 1852, the son of a farmer who had removed from his native state, Pennsylvania. He was educated in his native village, Monclova, and in Toledo, Ohio, and coming early in life to California, located at Sacramento and studied law. He was admitted to the bar of the Su- preme Court at the age of twenty-one, April 15. 1873. He was a member of the assembly at the twenty-fourth session, 1881, and a State prison director, 1883-84. Judge Van Fleet, who has always been of Rei)ublican politics, was elected Judge of the Sui)erior Court of Sacramento, first, in the fall of 1884. He served a full term, and was re-elected without opposition in 1890. He resigned the oflice in 1892, Noveml)er 7. and removed in llu' same month to San Fran- cisco. On \\)y'\\ 25, 1894, Governor Markham aji- puinted Judge Van Fleet a Justice of the Su- lircnie Court, in place of Judge Paterson, re- signed. At the next election, November, 1894, the Judge was chosen to fill out the unexpired 756 History of the Bench and Bar of California. term of four years. At the election in Novem- l)er, 1898. he was again one of the two Re- pubhcaii nominees for Supreme Judge. His party ticket was successful, but Judge Van I'lect was defeated by a small majority, owing to a misconception in the minds of many per- sons of the doctrine of a decision of the Su- preme Court in the case of Fox vs. Oak- land Street Railway Company. ilB Cal. 55- This was an action f..r damages for the loss ,,f a child (four and a half years old) of a lal)oring man. ihe child having been acci- denlallv killed by a street railroad car. The ophiion was written by Judge Van Fleet, and some of the language employed to state the doctrine relied on was excepted to by a few newspapers as making a distinction between the rich and the poor in the administration of justice. Quite naturally, a man in the hum- bler walks of life, uninformed in legal science, might see in this decision as thus interpreted by'the newspapers, a discrimination against liis class, but every lawyer who read it must have acceined it as sound in law and su.stained by judicial authority, iinl)roken through cen- turies, and as being susceptible of no such construction as that sought to be put upon U. It is very proper to place on record in this History the languae-e used by Judge Van Fleet in this case, to which exception was taken and which so unexpectedly operated Jo lerminale his distinguished career on the Su- ])reme bench. The question under discussion was tlial of excessive damages, and among other ihmgs, not i)ertinent liere, it \va^ said: ■■There was no averment or evidence of pe- culiar or special damages, nor the right to exemplary or punitive damages, the plaintiff's cause of action resting soley upon his right to recover for the loss of the services of his child resulting from its death. "The jury were properly instructed that they could .award nothing in the way of penalty for his death, nor for sorrow or grief of his jjarents. but must confine their verdict to an amount which would justly compensate plain- tiff for the probable value of the services of the deceased until he had attained his ma- jority, taking into consideration the cost of his s'upport and maintenance during the early and helpless part of his life; that while they could consider the fact that plaintiff had been deprived of the comfort, society, and protec- tion of his son. this consideration could only go to affect the pecuniary value of his serv- ices to plaintiff. "Upon the evidence ;ind these instructions the jury gave a verdict for six tbousaud dol- lars. ■•\Ve think it (|uite manifest, upon its face. that the verdict was actuated by something other than a consideration of the evidence. Under no conceivable method or rule of com- pensation permissible under the evidence could such a result have been attained. There was nothing to indicate that the value of the child's services would have been greater than that of the ordinary boy of his age, assuming that such a fact would have been pertinent. He was a mere infant, and for many years at best, under ordinary conditions — and it is by such we must judge — he would have remained, however dear to their hearts, a subject of ex- l)ense and outlay to his parents, without the ability to render pecuniary return. And com- mon experience teaches further that, even after reaching an age of some usefulness, he yet would continue for the better part of his remaining years of minority more a source of outgo than of income. . . . "But assuming that the deceased would have been set to useful and valuable employment of some appropriate character as early as ten years of age. which is unusual, at no average rate of wages or income which he could rea- sonably have earned, would it be at all prob- able that in the time intervening his majorit}' he could have earned, over and above the cost and expense of his maintenance, the very large sum given by the verdict? "Under the circumstances of the case it is solely by the probabilities that these things can be estimated. And while in no sense conclusive, we have the right, and it is most reasonable in judging of the probable char- acter of occupation the deceased would have pursued, to regard, with the other circum- stances surrounding him. the calling of his father — since experience teaches that children do very frequently pursue the same general class of business as that of their parents. (JValtcrs V. Chicat^o, etc.. R. R. Co.. 41 Towa. 71. 7.3-)" L'pon his retirement from the Supreme Bench at the opening of the year iSgq. Judge Van Fleet resumed practice at San Francisco with E. B. and Geo. H. Mastick. In August, i8gg, upon his return from a short trip abroad. Judge Van Fleet was appointed by Governor Gage a member of the commission for the revision and reform of the law. wliich office he now liolds. In Ai)ri!. 1S77, ;it Sacramento. Judge Van I'^leet was united in marriage with Miss Isa- bella Carey, daughter of R. S. Carey, an old and influential citizen of that i)lace. of Dem- ocr.ntic ])olitics. Mrs. Van Fleet died at Sac- ramento in February. 1878. leaving an infant son. In January. 1887. Jiilasdel, Nevada's first Governor, has closed at Oakland, Cal., his life of seventy-five years. We have a melancholy interest in speaking hi? honored name right here. A year ago, Governor Blasdel, on look- ing at a copy of our "Eloquence of the Far West, No. I — The Masterpieces of E. D. Ba- ker," remarked, "I like to encourage a man for work of this kind." WALDO M. YORK. Waldo M. York, a Judge of the Superior Court of Los Angeles county, was born in the state of Maine, in 1846. He was the only son of David P. York, a thrifty farmer of Dix- mont, in Penobscot county. His mother's maiden name was Sarah Vinal. His grand- father York was a Baptist minister, and his grandfather Vinal was a sea captain. Two of his mother's brothers became eminent in their professions, one as a doctor in Phila- delphia, and the other as a Judge in Connecti- cut. Another of his mother's brothers was distinguished in the legislature of the state of Maine, and for more than forty years was a respected public servant. His mother died in January, 1890, and his father died si.\ years later. There was but one other child of the marriage, a daughter, the wife of Albert Mud- gett, who now resides with her husband in Dixmont, Maine. Judge York is a giant in physical stature, being about six feet three inches in height, and weighing about two hundred and thirty pounds. But from his infancy until he was about fourten years of age, it is said that his health was not good, and that his develop- ment was slow. From that time he developed rapidly both physically and mentally. His care- ful and temperate life is no doubt the cause of his present physical health. He was edu- cated in the public schools and in private schools, and al the age of seventeen years passed a successful examination for a cer- tificate to teach in the public schools. Fron> that time until he was twenty-two years of age he was occupied in teaching, working upon his father's farm and atti-nding private schools. .\t the age of twenty he was principal of a higii school. .\l the age of twenty-two he was admitted to the bar in the Supreme Court f)f Maine, and inunediately connnenced the practice. In the spring of 1871. when twenty-five years of age. he removed to Seattle, in the then territory of Washington, where he opened an otTice for the practice of the law. Here he was received with very general favor. His (luiet manner and kind and courteous tempera- 760 History of the Bench and Bar of California. mcnt, his studious habits and clean life, and his earnest presence, attracted friends and clients on every hand. Endowed with fine judgment, and willing to bide his time, his novitiate was nevertheless exceptionally short, and he soon found himself before the general eye a pillar in a new commonwealth. In 1872, when twenty-six years of age, and after a residence of only one year at Seattle, he was elected Judge of the Prol)ate Court of King county, of which Seattle was the county scat. This office he held for two terms, when he resigned it to enter into the practice of law in San Francisco. While at Seattle he married the eldest daugh- ter of Rev. George F. Whitworth, D. D., a prominent Presbyterian divine of Washing- ton territory. The Judge evidently had a strong faith in llie Whitworth fanuly, for. on arriving at San Francisco, he entered into a law partnership with his wife's worthy brother, John M. Whitworth. Referring to his services on the bench at Seattle, the writer has seen opinions of some of the leading men of that city with reference to the manner in whicli he discharged the duties of that office. Ex- Chief Justice Jacobs, now one of the Judges of the Superior Court at Seattle, said of Judge York that he was a sound law^'er and an ex- cellent Judge, and that he earned the reputa- tion of lieing one of the best Probate Judges thai ti:at county had ever Inad. Ex-Chief Justice Burke declared that Judge York made an excellent Judge, giving universal satisfac- tion. "I rcmcml)er,"' he said, "hearing it very generally remarked when he left, that had he remained, the i)eople would willingly have re-elected him to the office of Probate Judge as long as he wished to have that posi- tion." Hon. A. .\. Denney. ex-member of con- gress, affirmed that Judge York filled the posi- tion of Judge of Probate with credit to him- self and to the entire satisfaction of the peo- ple, and that his character, both public and private, was absolutely unblemished. The Hon, W. H. White also bore testimony to his high standing as a Judge and his worth as a man. Judge York practiced his profession in San Francisco for twelve years. The firm of York & Whitworth. while he was a member of it, was engaged in some of the most important litigation in the State of California. One case in which Judge York was engaged, and in which be succeeded in obtaining a judgment for clients, is said to have involved property worth more than a million dollars. Several other cases in which he was one of the lead- ing counsel involved hundreds of thousands of dollars. While practicing his profession in San Francisco. Judge York resided at Berke- ley, where he became financially interested, and in which he now has large land holdings. He has always been interested in municipal gov- ernment, and took an especial interest in the government of Berkeley. He served four years as attorney for that municipality. He wrote many articles for local newspapers on topics of municipal reform. He also wrote and pub- lished many articles pertaining to the laws of the State and national politics. He took an especial interest in the Indian question, and, in an essay published in 1877, declared that the laws establishing and maintaining Indian reservations were wrong; that the Indians should be treated as citizens ; and that they should be held amenable to our laws the same as any other people. After coming to this conclusion, he wrote : "To be citizens does not necessarily imply that they should have the right to vote, although many people in the United States no better than they and no more intelligent than they, enjoy or abuse that right. * =*= * Our popular objection to such a course is that the Indians are not suffi- ciently intelligent to take care of themselves, and would sufi'er for food and clothes if re- quired to rely upon themselves. It is true they are not, as a class, intelligent, in the commonly accepted meaning of the term ; but they have taken care of themselves, and less destitution existed among them before their acquaintance with the whites than with the same number of white people. Since their connection with the whites they have suffered more for the necessaries of life than before. They raised corn, in very early times, and not only supported thmeselves, but assisted in supporting the whites." Among numerous citations of eminent authority for his positon. Judge ^'ork quoted from a speech delivered in the house of representatives of the United States by John C. Calhoun in 1820. The following article from his jien was pub- lished during the sand lot excitement in San I'ranci.sco : "dexxis ke.\rxev. "This name, which to hundreds of thousands of people has become exceedingly familiar, is that of a man who but a few months ago was entirely unknown to fame. Now could his brother draymen say : " 'Ye gods, it doth amaze me, A man of such a feeble temper should So get the start of the majestic world. And bear the palm alone.' WMo M. York History of the Bench and Bar of California. 63 "He is said to have been in San Francisco Init a short time, and yet commands a vast number of her citizens as absohitely as though he were their hereditary dictator. His ideas are the most absurd, and yet thousands listen to him with marvelous appreciation. It is well for him that he sprang from the ranks of the draymen, for if he had been an individual of any note, his doctrines would have dis- gusted those who now admire. For a for- eigner, resident in San Francisco, to talk of sending military companies to Alameda county to elect a candidate for senator is such an assumption that, without further evidence, we could believe the speaker to be a lunatic or a fool. Though we do not record ourselves in favor of the 'Incendiary bill,' we do claim that the public have and should have the right to prevent public incendiary utterances. Freedom of speech does not mean freedom to incite evil-disposed people to violate the laws, and he who is prevented from so doing has no more right to complain than he who is prevented from cutting another man's throat. Kearney cannot long hold his position in the confidence, esteem and admiration of the work- ingmen. The fallacy of his doctrines — doc- trines which would make a monarchy of a re- public, a thing more to be deplored by the workingmen than all things else — must soon appear to them, and then his ephemeral power will fade quickly away. "The course he has taken may neverthe- less be a benefit in one sense to the work- ingmen. It will teach monopolists their inse- curity, and the government that the Chinese element is antagonistic to free institutions. Successive demonstrations of the people in op- position to the powers of the land have grad- ually transformed England from a monarchy to a government nearly republican in form. Such demonstrations make their footprints on the pages of history, and while we now con- demn Dennis Kearney and call him a fanatic, the time may come when we can point to in- fluences of great value to the nation — out- growths of his wild, disorderly acts. There is, however, no necessity in the present enlight- ened conditon of our country for such demon- strations. The ballot is an ample remedy for all the evils complained of, and the locking up of nervous capital through fear of insur- rection is of more damage to laboring men than all they can hope to win by incendiary agitation." About 1887 or 1888. Charles .V. Shurllcff. Esq., was added to the firm of York & Whit worth, and thereafter the firm name was York. Whitworth & ShurtlefT. The old sign nf that firm can still be seen at uo Sutter street, in San h'rancisco. Becoming conscious of the fact that he had overworked, and that a change of climate and of work would be beneficial to him, Judge York removed to Los Angeles, in 1889. Here Tie immediately acquired a good law practice. In the fall of 1890 Hon. James McLachlan was elected district attorney of Los Angeles county. The county was at that time engaged in very important litigation. It was the com- mendable policy of Mr. McLachlan to so or- ganize his office that no assistance would be required in the management of the cases in which the county was involved; and, among others whom he selected for deputies in that office, in the line of that policy, he offered the position of chief deputy to Judge York, al- though at that time there was no personal ac- quaintance between them. After some con- sideration. Judge York made provision for as- sistance in his private practice, accepted the po- sition and entered upon the discharge of the duties of that office. In that position he suc- cessfully conducted the civil litigation of the county, and in several cases won distinction by the ability with which he conducted them. Among these cases might be mentioned the celebrated railroad tax cases, in which he suc- cessfully contended that the assessment of railroad property by the State board of equali- sation was legal, notwithstanding a franchise was assessed with other property at a gross sum, and that the franchise assessed was a State, and not a United States franchise; the bank ta.x cases; and the Tahiti orange tree case, where he successfully contended that a shipload of orange trees, infested with scale, imported from the Tahiti Islands, was a pub- lic nuisance, and secured an order of court for their destruction. After tw@ years of service in the office of the district attorney, he entered into a part- nership with Mr. McLachlan under the firm name of McLachlan & York. This firm es- tablished a large practice. In addition to many important cases conducted for their private clientage, they represented several public offi- cials. They were attorneys for the Stale bank connnissioners for Southern California, for the public administrator of Los Angeles county, tor the Whiltier .Slate School, besides repre- senting the county treasurer in a suit which went through the Supreme Court, and de- fending tile superintendent of the County Hos- pit.il .md the horticultural commissioner, in "iTorts made by dissatisfied parties to obtain llieii- renio\-;il from office. I)nring the year iS'o.^ uhiK' IJU' tirni ot' Mc- L.icJilan (& York was engaged in business in I. OS Angeles, the Hon. W. P. Wade, one of I 111' Judges of the Superior Court of Los An- g(.I(.s county, died. On the first of January t'ollouing, (iovernor Markham appointed Judge ^'ork to fill tlu- vacancy, .\lthough this ap- 764 History of the Bench and Bar of California. poimnu'iu was unexpected, it gave general sat- isfaction to the members of the bar and the people. In the fall of 1894. in the Republican convention, Judge York received exceptional honors, being the only candidate nominated for Judge on the fir.st i>allol, there being eight candidates in the field and two Judges to be nominated. Although running against a law- yer of great learning and ability who had the nominations of both the Democratic and Pop- ulist parties. Judge York received a popular majority at the polls of about thirty-five hun- dred votes. The term to which Judge York was elected was for si.\ years, commencing January i. 1895. As a Judge, Judge York lias been com- mended on all hands. He has shown an ex- cellent judicial temperament. He has been fair, patient, deliberate and courteous. Yet he maintains excellent order in his court room and has been highly respected by the bar. His memory of testimony is unusually clear and his conception of the law applicable to cases is quick and usually unerring. His decisions are ably written and he has shown an excellent faculty of concentration, making his opinions short and to the point. He has tried many cases of great importance, including the case of Vineland Irrigation District vs. Azusa Water Company et al.. tlie trial of which lasted about two months, and in wliicli his de- cision was affirmed by the Supreme Court. Several other cases involving water rights of immense value have been tried before him, and in many of them his decisions have been ac- cepted as final without appeal. Judge York has Iieen frequently cumnieiided by the press and people for his care and dis- crimination in the e.xamination of applicants for naturalization. Applicants for naturaliza- tion have been repeatedly turned away whom he believed, by reason of ignorance or other- wise, to cheri.sh no intelligent attachment for our laws and institutions. In a magazine ar- ticle ])ul)lished by liini, December g, 1895. In- states very clearly and tersely iiis views with respect to the rights of foreigners to become naturalized as citizens of the United States. The Los Angeles Times of November 5, 1894. observed as follows concerning this matter of naturalization: "Many applicants have not been able to say whether this is a monarchy or a republic. ;ind many iiave declared the President to be the government itself. Judge \'ork is known to have been always patient .vith these applicants, examining them care- fully, and, after satisfying himself that the questions were understood by them, am! that they were wholly uninformed as to our system of government, has kindly but firmly refused to admit them to citizenship." The Judge is an excellent public speaker. He is impressive from his easy manner, his distinct enunciation and honest and lucid state- ment. Among his orations which have been published in full by the press were those on Independence Day, 1878, at Redwood City; on a like occasion at San Miguel, in 1887, and on Memorial Day at Ontario, in 1894. As illustra- tive of his style of composition, we quote his peroration in his Fourth of July address at San Miguel: "i'hat flag is inseparable from this day. It is the materialization of a sentiment. ' The stars symbolize the union of the states, while the stripes symbolize the grand old thirteen colonies that declared our independence. It is symljolical of union, perseverance, vigilance, honor and justice. It was first unfurled by Washington at Saratoga. It waved over our patriot armies in the dark hours of the Rev- olution. The bare-footed soldier at Valley Forge endured his privations and sufferings with greater fortitude as he looked upon that flag floating in the harsh winter winds ; as, in his imagination, he saw a great nation ruled by the people, over whose public institutions, whose armies and navies, that flag would tri- umphantly float : as he thought of the honor and love with which a great people would cherish that flag and honor its defenders ; as he thought of the immunity from tyranny of a great people under its protecting folds. In the storm of battle how oft' has that flag inspired our patriot troops I How often have they sworn to die rather than surrender it! How many brave men have died that that flag might float ! What scenes of heroism has that flag not witnessed ! Alas ! What .scenes of suffering and barbarity ! Trailed in the dust at Wyoming, and Cherry Valley, while its defenders la}' weltering in their blood, it floated in triumph at Stony Point, at King's Mountain, at Cow Pens, and at Yorktown. In the wars that have succeeded the Revolution, it has found equally brave defenders. They, too, have bourne it through shot and shell ; the gloom of defeat and exultations of victory have been theirs. It has floated on every sea and in every commercial port of the globe. All nations respect it. and under its folds our commerce is safe. "Under that flag our nation has grown great and prosperous. Under that flag literature and the arts have flourished, and inventive genius has found protection and appreciation. "It floats over a greater inland commerce than any flag ever unfurled. It is the ban- ner of human progress, of human energy, of liberal religion, of free schools, of free speech, and of a free press. "May this day ever be remembered by a grateful people, and may that flag on each sue- History of the Bench and Bar of California. '65 ceeding anniversary of our Declaration of In- dependence, until time shall be no more, float over this broad land, loved and cherished by its increasing millions of freemen, and loved and cherished by the people all over the world, as the emblem of permanent liberty to man." In his memorial address at Ontario, Judge York pays the following tribute to General Grant : "Hannibal fought for revenge. Julius Qesar fought for extension of Roman territory and dominion. Bonaparte fought for military re- nown. Enthused by the spirit of liberty in this country was reared a military commander who fought for his country alone. 'Let us have peace,' was the spontaneous sentiment of his heart. He won peace on fields of battle amid the roar of artillery, the screaming of bursting shells and the groans of the wounded and dying. His armies triumphed over the armies of Lee, and then his great soul tri- umphed over their hearts. Future historians must say that he who led the Union armies to victory was the greatest general of the world. Yet. though he had a military education, he was called from the pursuits of peace, his heart revolted against the necessary cruelties of war, and he was satisfied to live the life of an ob- scure American citizen. "Hannibal died by his own hand, an exile from his native country. Julius Caesar was assassinated by conspirators, professedly be- cause he was a danger to t'le state. Bona parte died in exile, hated by the world. Grant died with the hearts of his countrymen by his bedside, with the firm friendship of those against whom he fought, and the whole world sorrowed. 0:i his deathbed he wrote that he would die happy if he could but know that there was complete unity of the country. God bless his noble soul, and may he have an eter- nal round of perfect happiness in heaven." Our jurist has always loved the muse, and the i)ress has often published his pleasing verse. Among these are "The Dedication of a Virgin Valley," published in r886: "Maine in California," read at the eleventh annual re- union of the State of Maine Association at Oakland, California, on May 5. 1888: "The Banyan Tree at Avalon." i8(}i ; "The Victo- rious Banner," 189,?: "The Spring in liu' llili- side." 1894: "Eternal Life." 1895. Siinie of ijie nuisl discriminating and aliK' men of California, and many public jDurnals. ha\e long associated Judge \'ork with tlu- office of United States senator. During the long contest over this high office in t898-()(;. when the term uf the lion. Steiihen .M. White ex- pired. Judge York was highly recommended to fill the vacancy. The Los Aw^clcs Graf^liic. Pasadena Ne^i^s, Pomona Tiiiics, San Mii^itrl jMcsscni^cr. and several other papers declared iuie{|uivocally in his favor. But the Judge would not consent to enter into any struggle for that positon. howmuchsoever he might de- sire the distinction, and would have desired to engage in the study of the great problems of government now before the country. The friends of Judge York predict that he will have further pul)lic Iionors. but his retiring disi)osition and ins evident .satisfaction with the work in which he is now engaged, render his advancement problematical. He has, how- ever, shown himself equal to any work whicli he has undertaken. Judge York resides in Pasadena. His family consists of his wife and two children, a son and daughter. His daughter. M. Jessie York. is an elocutionist of exceptional ability, and his son, Mr. John M. York, is in the practice of the law in Los Angeles. In November, igoo. the Judge was again elected to the Superior bench for a full term. This will expire m January, 1907. B. T. WILLIAMS. B. T. Williams, Judge of the Superior Court of the county of Ventura, was born at Mt. Vernon, Missouri. December 25, 1850. His father. Dr. J. S. Williams, a native of Ken- tucky, was an eminent pliysician. His grand- father. Tliomas Williams, was president if wli.it is now IJie I'niversity of Kentucky, 'i'he ancestors of the family settled in North Car- olin.'i at ,1 period so early that all accoiuils of liuni ,ire Insi. One of lliem. a relative of D.iiiiel I'.ix.nr. wciii to Kentucky with that liionrer. 1 lie Judge's mother, whose maiden name was Amanda Downing, was of the well-known Downing family of l';m(|iiier county. \''irgim'a. 766 History of the Bench and Bar of California. whose ancestors located in that state at the time of the first settlement at Jamestown, in 1607. Her father, H. H. Downing, emigrated to Missouri in the early history of that state, and was a large landowner and planter. The Judge's parents came to California in 1853, settling in Sonoma county, and there he grew to the years of maturity. He began the study of law in the office of the late Judge William Ross. He was admitted to the bar in 187 1, and located at San Buenaventura, where he engaged in the practice of his pro- fession. Upon the organization of the county he was elected district attorney, and served in that capacity acceptably for four years. Enter- ing then into partnership with his brother, the late \V. T. Williams, he continued in that re- lation with him until 1884, when he was elected to his present position of Superior Judge. He is now serving his third term. In his social relations. Judge Williams is a member of the Masonic lodges, of the K. of P., and the B. P. O. E. He was married in 1878 to Miss Irene Parsons, and now has five children, all born in San Buenaventura. Judge Benjamin Tully Williams is a repre- sentative American gentleman, good-tempered, affable, easily approached and destitute of pride or ostentation. He has a fine legal mind, is a ready, easy speaker, makes his rulings promptly and usually gives entire satisfaction. By showing his honest desire strictly to admin- ister exact justice, both when district attor- ney and later as Judge, his conduct has been such as to command the respect of the bar, as well as of the best citizens of Ijoth parties. William Thomas Williams, the brother above named of Judge Williams, was born in Missouri, and also came with his parents to California in 1853. He began the practice of law in Sonoma county in 1866. He was district attorney of Santa Barbara county be- fore Ventura county was created. Removing to Los Angeles in 1885. he practiced there un- til his death, which occurred in 1900. In 1896-97 he was deputy district attorney of Los Angeles county under Hon. John A. Don- nell. WILLIAM A. CHENEY. William A. Cheney, an experienced public man of California, was born in Boston, Mass., February 18, 1848. He received an academic education, and has been a student all through his life. At the age of nineteen, A. D. 1867, he came to this State by way of Panama, and went to Plumas count v. He was admitted to practice by the courts of Plumas county in 1878, and in the same year was elected County Judge of Plumas, holding to the open- ing of 1880, when the court passed out of existence with the old constitution. He was in the legislature at the first session under the new constitution, as State senator for Plumas, Butte and Lassen counties. He served at the sessions of 1880 and 1881. and the extra ses- sion of the latter year, an important period, when the laws were being adapted to the new constitution. In 1880 he was admitted to the bar by the State Supreme Court. During his senatorial period, without without residing at Sacramento, he had a professional association with Hon. Creed Haymond, of that city. Judge Cheney removed to Los Angeles in 1882. He was soon elected a member of the board of education of that city, and served the two years' term, 1883-84. In the fall of 1883 he was elected, on the Reptiblican ticket, a judge of the Superior Court of Los Angeles county for a full term of six years, which he served. He resumed law practice in January, 1891. In the "History of Los Angeles County,'' (1889) there is a notice of Judge Cheney, from which we take the following well-considered passage : "In his administration of the criminal law, for which department he was selected by the judgment of his associate judges, and for which his deep moral sense specially quali- fied him, an earnest desire to temper the se- verity of the sentence with such measure of mere}- as he thinks benefits the individual case, is never absent. While inflicting the neces- sary penalty of transgression, he seeks to fos- ter and encourage whatever impulse toward virtue may still linger in the heart of the crim- inal. He habit ualh- recognizes that in the vio- lation of law there may be hidden the germs of redeemable manhood. "No biograuhical sketch of Judge Cheney would be comnlete without a reference to his ability as an orator, so often attested in his criminal practice at the bar, and to his achieve- ments on the platform on great occasions, which place him in the front rank of public speakers." The Judge married Miss Annie E. Skinner, of New Haven, Connecticut, in 1871. They have one son. Harvey D. Cheney, who is also- a member of the bar. M. II. HYLAND. M. H. Hyland. one of the Judges of the Su- perior Court of Santa Clara county, was born in Massachusetts in 1851. He has been a resi- dent of San Jose since about 1S70. He served History of the Bench and Bar of California. 767 ■one term as deputy in the county clerk's of- fice there. He prepared himself for the bar in that city, and passed the examination before the Supreme Court in 1885. He practiced in San Jose until 1896, when he was elected a Judge of the Superior Court. He is repre- sented by those who know him well as being a man of broad mind, kindly nature and fine judicial temi)cranicnt, entirely worthy of a place among tiie distinguished men wlio have dignified the bar and the bench of Santa Clara county. At the bar he was always character- ized by industry and ability, and he has made an excellent record on the bench. He is firm in his rulings, impartial and conscientious in his judgments. He is of very fine physiog- nomy, telling of a frank nature and cor- rect habitudes, and clear reflection. His term as Superior Judge runs to the first week in 190.3- ^^^ S. C DENSON. Samuel C. Denson was born near Quincy, Adams county, Illinois, September 23, 1839. He belongs to an old American family, and his forefathers were found "Where once the embattled farmers stood And fired the shot heard round the world." He was educated in the district school and at Abingdon College. He commenced the study of law at Quincy, but before completing his course he came, in i860, across tho plains, behind an oxtcani. Upon arriving in the State, he drifted into Butte county, where for a time he engaged in mining, about sixteen miles from Oroville. He resumed law study at Oroville, borrowing books from Joseph E. N. Lewis, then a prominent member of the bar of that county, who died at Oroville, June 26th. 1869. He read at night while prosecuting his mining labors during the day. Being oflFered the situation of teacher of the village school at a little place called Wyan- dotte, he accepted it, and for eight months taught school, giving all of his leisure hours to the reading of his law-books and going to Oroville on Saturdays for instruction and to exchange books. He prosecuted his stud- ies as best he could until 1863, when he was admitted to the bar. In March, 1864, he went to the Territory of Nevada, locating at Carson City. He was examined and admit- ted to practice in the Supreme Court of that Territory. On the organization of the State government in the fall of 1864. he was elected a member of the first State legislature from Ormsby county. He practiced law, first in partnership with Judge Thomas Wells, and afterwards with Thomas E. Hayden, and was engaged in much of the important litigation of that State. In 1866 he was elected district attorney of Ormsbj- county, and was re- elected at the November election, of 1868. Being re-elected district attorney, he re- signed the office in December, 1868, and removed to Sacramento, in this State. There he formed a partnership with Hon. H. O. Beatty. who had been a Supreme Judge of Nevada, as al.so his son, Hon. William H. Beatty, now Chief Justice of our Supreme Court. The firm continued until 1875, when Judge Denson was nominated by the Repub- lican party and elected Judge of the Sixth judicial district, composed of the counties of Sacramento and Yolo. When the new constitution went into effect, and at the Republican county convention in 1879, he was unanimously tendered the nom- ination for Superior Judge, and was elected to that office by a large majority. As Supe- rior Judge he presided in many important cases. One that attractoti the attention of the State was that of Troy Dye and Edward .Anderson, charged will the murder of Aaron M. Tullis. Dye was a prominent citizen of Sacramento county, and at that time held the oflU-i' of j)nl)Iic administr.itor. The evidence in the case showed that in order to secure the commissions as public administrator in ad- ministering on the estate of Tullis. who was a ln.ivy land owner in the county, he had entered into a conspiracy with Anderson and Tom Lawton to murder Tullis. Tullis owned a large orchard on Grand Island. On the evening of July 30, 1878, Lawton and Ander- son left Sacramento in a rowboat for Grand Island, and there killed Tullis. The detcc- 768 History of the Bench and Bar of California. lives fastened the crime on the parties, and arrested Dye and Anderson, but Lawton made his escape. Shortly after the arrest, Dye and Anderson confessed fully the details of the crime. The peculiar motive for the crime — that of obtaining the commissions as public administrator — together with the prom- inence of Dye, attracted universal attention. These cases were defended by Colonel Creed Raymond, but the defendants were convicted and hanged. During his term of office as District Judge, there was a large amount of litigation involv- ing the titles of swamp lands, the consideration of the law on the subject of reclamation dis- tricts, assessments, etc., and he had to do with most of the important cases on that sub- ject in this State. Being located at the seat of government, all of the important State JAMES M. MANNON. James M. Mannon, Judge of the Superio;- Court of Mendocino county, was born in Brown county, Ohio, and received his educa- tion in the common schools of that State. He was graduated from the Southwest Normal School at Lebanon, and after a few years passed in teaching school, he immigrated to California. He arrived in San Luis Obispo county in 1873, and engaged in stockraising and various other pusuits, until failing health compelled him to withdraw from active phy- sical labor. He then began the study of law, and in 1881 was admitted to the bar. Shortly thereafter he removed to Ukiah. In 1875 he was married to .Miss Mattie litigation, which has arisen during his term of office, came before him for decision. In the fall of 1882, Judge Denson and Supe- rior Judge John Hunt, of San Francisco, were the Republican candidates for Justices of the Supreme Court, but the State went strongly Democratic that year, and the nominees of that party were all elected. Judge Denson removed to San Francisco in 1889. In 1894 he and e.x-Supreme Judge John J. DeHaven, became associated (Denson & DeHaven), and remained together for three years, when Judge DeHaven entered upon the office of United States District Judge. Judge Denson, his son, H. B. Denson, and C. H. Oatman, then comprised a new firm (Denson, Oatman & Denson). After a year or so, Bert Schlesinger took Mr. Oatman's place, and the firm continues as Denson, Schlesinger & Denson. Clark of Windsor, Sonoma county, and two living sons are the issue of the marriage — Charles M. and J. Milton. The former was graduated with honor from Stanford Uni- versity in 1898, and from Hastings College of the Law in 1900. He is now in active practice in San Francisco. J. Milton Mannon, the younger son, was graduated from the Uni- versity of California in the class of "99, and is now a middle-year student in the Hastings College of the Law. Judge Mannon rose rapidly, not alone in his profession, but in the confidence of the people, and the years 1887-88 saw him occupy- ing the position of district attorney, a place he filled with distinguished ability. When his term ended he resumed the practice of the law, and soon attained the position of a leader at the bar, Among his clients were the large corporations of the State and the prominent business men of the county. In 1896 he was the Republican candidate for Judge of the Superior Court, and in a county that was strongly Democratic he was elected by a substantial majority. His de- cisions are regarded as having always been just and fair, and the attorneys of all par- ties have never yet expressed dissatisfaction at his rulings. The Judge possesses, in an emi- nent degree, the judicial mind. He is tolerant and patient under the most trying circum- stances, and has the entire confidence of the people of Mendocino county. His ambition in life has been the education of his sons, who are very bright young men. They have been given every advantage, and are now entering upon careers which promise 10 be distinguished. We have aimed to present the members of the betich in alphabetical order. Here and there this arrangement has been departed from to bring a portrait in apposition with the sketch of the same person. And there are some sketches which were put in form too late for the usual disposition. These appear in the iew pages that precede this note. Editor. SENIORS OF THE COLLECTIVE BAR ujd(^oi(at!fi3i^(2>Gib(^b^dib HISTORY of the BENCH and BAR of CALIFORNIA , ep C)n riti rp efi rpi ^ SENIORS of ^^e COLLECTIVE BAR The great array of attorneys who face the sunrise of a new century, and who will now receive our attention, we will not attempt to classify according to degrees of ability or merit. Of this large body there are recognized able men in every city, and in some of the smaller centers. These, as a rule, do not lay claim to superior endowments or acquirements, and really are not on higher ground than some others whom the light of reputation has not yet brought into plain view. And ever and anon the profession is heard calling to some occupant of a lowly seat, "Friend go up higher." We shall present the profession in two companies, divided only as seniors and juniors, drawing the line at the year i860. Those who were born before and in that year we place in the finst company, and all the rest in the second. As a further assurance against any- thing like inattentive discrimination, both companies will be brought into alphabetical line, ex- cepting any individual member of either company that may have to be written of too late for such assignment. Of course we are alive to the fact that in our second band are a goodly number of practitioners of larger experience, more mature minds, and more natural ability than many whom this enforced arrangement has thrown into the first collection. The reader will consider and conclude for himself. FREDERICK AfJAMS. This gentleman is a native of Crawford county, Tennessee. Both of his grandfathers were Revolutionary soldiers, and both served in the War of 181 2. His father, long before he reached man's estate, fought in wars with the Indians. At the age of seventeen, while acting as hospital steward, he was shot tlirough the left shoulder. He also took part in the Blackhawk War. In 1835 he settled at St. Louis, Mo., in the practice of law, and there held the offices of Circuit Judge and Commissioner of Public Works. Judge Adams, our subject, in 1844. when a mere boy, went to the Kansas Indian territory as interpreter to the commission sent out by the government to treat with the Indians, and remained with the commission for two years. In 1846 he joined the Second Indiana Volunteers at Memphis, Tenn., as a drummer, and went with the regiment to Mexico. He was wounded in a fight with Mexican guer- rillas near Fort Brown, and languished in a hospital at San Antonio for over four months. Upon recovery he was transferred to the Second Texas Vohmteers, and. in a campaign against the Comanches, was in the Battles of Big Horse Creek, Wild Horse Creek and Forks of Wild Horse Creek, in all of which the Texans sustained severe losses ; and at Silver Springs, where they were de- feated. Returning from this Indian expedition, he was ordered on a detail sent to guard dis- patches and supplies for Colonel Donaphan and his regiment, the Second Missouri. He was discharged at El Paso, Texas, November, 1847. Receiving the appointment of govern- ment mail carrier between El Paso and Al- buquerque, New Mexico, he was in that ser- vice from November, 1847, to May, 1848, often meeting hostile bands of the red men, who killed a number of his horses, and from whom he had many close personal calls. Judge Adams set out for California as early as November, 1848, with Marcy's Bat- talion. He was discharged in 1849, at Los Angeles. The next five or six years were passed in the gold mines of El Dorado, and Siskiyou counties. The opening of the Rogue River Indian war in 1855 found him again in the government ranks, and ho ersonality and has a host of friends among all classes of our citi- zens, and particularly among the comrades of the Grand Army of the Republic. \V. T. BAGGETT. William Thomas Baggett. who has become distinguished of late years at the bar of San Francisco, was born in Mississippi. December 16. 1850. He was admitted to the bar by the Sui)reme Court of Tennessee in 1873. Coming to California in 1877. he located in San Fran- cisco. In 1878 he issued the Pacific Coast Lazi.' Journal; the next year he published the (San P'rancisco) Lazv Journal, in associa- tion with F. A. Schofield ; in 1880-81 he and William H. Davis owned and conducted the journal first named above, and Mr. Baggett was then also editor of the Daily Examiner, of which he was part owner. In 1882-8? he and Mr. Davis, and James H. Stockwell, owned and nublished the (San Francisco) Daily Lazv Journal, which journal is still, in 1901. owned and conducted by him and Mr. Stockwell. It was about 1883 that Mr. Baggett began to apply himself in earnest to the practice of law. He very soon became connected with some cases of first importance, which he car- ried to successful issue, surprising his ac- quaintances of the bar by his skill in man- agement, as well as by his knowledge of the law. He is a far-sighted man and an able lawyer, and he has, for a decade or more, en- joyed great good fortune at the practice, ac- quiring a comfortable estate. His most nota- ble case, in which he scored substantial tri- umph, after a protracted struggle, is briefly stated in the sketch of Hon. J. C. B. Heb- bard — that of Fox vs. Levy et al., known as the Hale & Norcross suit, where his client, the plaintiff, obtained the largest money judg- ment e\er rendered in a contested case in this State. H. A. BARCLAY. .Ml'. P.arcla\- \v:is born in Jefferson county, I'ennsylvani.i, J.inuary 17. 1840. His f;ither w.is lion. David Barclay, a descendant of a long line of Scottish ancestors, of whom Rob- ert Barclay, the aindogist. was an eminent member. They were usually design.ited ,is the i'.,ircLiys of I'ry — the faiuily seat. David Bar- cl,'i\- wa-; ;i member of congress in 1856 and 1S57. Me helped to organize the Republican n;iri\ in I'rnnsyl\;ini;i. On his mother's side he c.ime of I'jiglish slock — her ancestors being inUresii-d with William Penn in the Penn- ^yK.inia grant. Charles Gaskill, her f.uher. w.is ;in extensive land owner in Philndeliihia ;ind Camden. Mr. Barclay, by hi~. own efforts, obtained an education al Allegheny College at Mead- ville. Pennsylvania, and at Cornell I'niver- silv in the classical and scientific courses. He 778 History of the Bench and Bar of California. then took up civil engineering. He was en- gaged in the oil business in Pennsylvania for a number of years. He studied law and was admitted to the bar in 1871. He practiced law in Armstrong, Clarion and Alleghenj' coun- ties until 1874. In that year he came to Cali- fornia and settled in Los Angeles. He en- deavored to develop the oil industrj' in Los Angeles county, but failed to enlist capital, and resumed the practice of law in Los Angeles city. He was one of the founders of the South- ern California National Bank, now the Mer- chants" National Bank, and was one of its di- rectors and its attorney for a number of years. He has been interested in the developtuent of Southern California, and was one of the founders of Corona, Rialto and Beaumont, and was largely instrumental in securing the forest reservations of San (]al)ricl and San Bernar- dino. Mr. Barclay has paid particular attention to land and water litigation, corporation law. me- chanics' liens, mining law, and is a member of the Southwest Miners" Association. Politi- cally, he is a Republican. He was vice and acting chairman of -the county Republican cen- tral committee in the Garfield campaign, in whicli Los .Angeles county was carried for the Republicans for the first time in its history. He was elected chairman of that committee in the ensuing Blaine campaign. Mr. Barclay was married, in 1882, to Miss Lily A. Ward, formerly of New Haven. Con- necticut, by whom he has had two children. He resides at 1^21 South Main street, Los Angeles city. JOHN A. BARHAM. John A. Barham was born July 17. 1844. in Missouri. He came with his parents to Cali- fornia in 1849, and has since been continu- ouslv a resident of this State. He was edu- cated in the public schools and at the Hes- perian College at Woodland, California. He taught for three years in the public schools, and during that period he read law. He was admitted to the bar in 1868, and practiced law successively at Watsonville, San Fran- cisco and at Santa Rosa. Mr. Barham was elected to the fifty-fourth congress from the First district in November, 1894. as a Republican, and was re-elected to the fifty-fiftii and fifty-sixth congresses each time by an increased vote. The district was Democratic when he first ran, but he was elected to the fifty-sixth congress by 1354 majority. In the two last campaigns "Native Sons"" were nominated against him. He claimed that, while he was not a native son. he got here as quick as he could. His period in con- gress was from March 4. 1895, to March 4, 1901. During his first term he took an active part against what was known as the "Powers funding bill." which was designed to fund the indebtedness of the Lhiion. Central and West- ern Pacific Railways. He assisted in defeat- ing it. His contention was that railroads should pay their debts the same as individuals are required to pay theirs. He w^as also an active and earnest advocate for the construc- tion of the Nicaragua canal. His opposition to the "Powers funding bill"" brought out the railroads against his re-election. He had in- tended to retire from congress at the end of his first term, but the opposition of the rail- roads caused him to announce his candidacy. This he did in a prepared interview from Washington, D. C. He gave no further at- tention to the matter, took no part in the elec- tion of delegates to the convention, and did not know who the delegates were that were chosen from his own home. Although many candidates in his party aspired to the high place, he was nominated by acclamation. During his second term Mr. Barham of- fered an amendment to the senate bill for the settlement of the railroad indebtedness, which by his personal influence in the house was adopted, and by virtue of which the wholc debt of the Union, Central and Western Pa- cific Railroads was settled and every cent of principal and interest, amounting to over $124.- 000.000. was paid into the treasury of the United States. Thus was happily removed from State and national politics an embarrass- ing question. Mr. Barham had again intended to retire at the end of his second term, but his advocacy of the bill on amendment for the settlement of the railroad indebtedness called down upon him the wrath of demagogues, and he was de- nounced as a railroad hireling. In conse- quence of this, he again announced his can- didacy for re-election. He was again renom- inated without the slightest intimation of op- position in his own part}-, and was re-elected by a largely increased majority. He procured the passage of many local bills for his dis- trict and at all times was a persistent, active and zealous advocate of the Nicaragua canal bill. No mall took a more prominent part than Mr. Barham in the matter of this bill. After years of labor, he engrafted upon the Hepburn bill two amendments, one doing away with the necessity of acquiring sover- eignty over the canal route (which was im- Harmon Bell History of the Bench and Bar of California. 781 possible under the constitutions of Nicaragua and Costa Rica), and providing simply for a right of way; and tlie other amendment re- lieved the bill from diplomatic emljarrassmenl, leaving to future congresses the settlement of the question whether the canal shall be for- tified, defended by the navy, or whether the canal shall be neutral. The adoption of this last amendment brought about the consid- eration of the bill in the house by imanimous consent, and it passed by a large majority. Mr. Barhani took a very prominent part in the measure for the construction of the Pacific cable from San Francisco to Manila, by way of Hawaii. He made a strong report on the "pure food bill," in which bill he took great interest. He is an influential member ol the house, a member of the most important committees. He is in touch with the depart- ments, and is a personal friend of the Presi- dent. Mr. Barham never plays to the gal- leries, never looks back to see which way the procession is going, but is fearless in the l)erformance of duty. He has made icw speeches in the house; he believes that much lime is wasted and money expended in use- less and tiresome debate, but he has won a national reputation as an orator in the true sense of the word. At the close of the campaign of 1898 he announced that he would not be a candidate for re-nomination. He was urged by mem hers of all parties to reconsider and to again stand for re-election, but while acceptiny the high compliment, he firmly declined. Mr. Barham is in the prime of life, and is about to return to the practice of the law. He is recognized as a lawyer of splendid ability, and intends, at the close of the fifty-si.xth con- gress, to reside and follow his i)rofession at .San b'rancisco. ARCHn^..\LD BARNARD. .Vrchibald Barnard was born at Montreal, in Canada, on the loth of November, i860. He comes from a family of lawyers; his father, Edmund Barnard, was an advocate and ;i Queen's counsel ; his grandfather, lulward Barnard, wxis for many years attorney general of Lower Canada. His great grandfather was also a lawyer. The Barnard family came or- iginally from Deerfield. Massachusetts, and was amongst the first settlers of that State. Mr. i'>arnard's mother was the daughter of Charles King .\ustin, a member of the judiciary in Al- bany, N. Y. Mr. Barnard was educated at .St. Mary's College, in Montreal, and holds the degree of bachelor of arts from St. John's College, Ford- ham, N. Y. He holds the degree of Ijachclor of laws from McGill University, in Montreal. He was admitted to practice in Canada in July, illege (now rniversity) of California. We knew him when he represented .Mamed.i and Santa Clara cotmlies in the State senate at the sessions of 1857 and 1858. the legisla- lure then meeting amnially. He was a do.sc friend and adnu'rer of Raker, and was himself .1 strong and logical speaker. The session of 1857 was the first at which the Republican party had ;i representation in either lionse. 782 History of the Bench and Bar of California. That party, of which the elder Bell was one of the organizers in this State, had just elected their legislative delegates in San Francisco and Alameda counties. Some extracts from Samuel ii. Bell's speeches are in our book, "Calitornia Anthology." He was in the legis- lature again at the thirteenth session, at a most stirring war time, now representing Ala- meda county only, and being in the assembly. Harmon Bell received a fine education, and was admitted to the bar in 1878. Since that time, at different places, he has always been actively occupied in his profession. For a period he resided at Kansas City, Missouri, and for two years represented that city in the state legislature. He has been at the bar of San Francisco for only a few years, but has acquired a good practice. He is a very competent and devoted lawyer, possessed of manv engaging (jualities. and inspires a kindly feeling in all who come to know him. Mr. Bell is of Republican politics, a Knight Templar Mason, and a member of the Mystic Shrine. He was married in 1880 to Miss Catherine Wilson, daughter of A. J. Wilson, Esq.. and Margaret Wilson, of Santa Barbara. There are two children of tne union now liv- ing. Traylor W. and Joseph S. The family home is on Prospect Heights, Oakland. HORACE BELL. Major Bell was born at New Albany. Ind., December nth. 1830. His paternal and mater- nal ancestors were of the Parson Holmes col- ony that landed in Boston from six ships in 1719. This colony was made up at Manches- ter. England, and has been known as the Scotch-Irish Presbyterian colony. His moth- er's family name was Wright. The Wrights, McKees. Williamsons and Bells were of the original settlers of Fort Pitt, and were of the founders of Pittsboro. now Pittsburgh, in 1789. They were all kinspeople. Our subject left school in Kentucky at the age of eighteen years, and came overland to California, arriving at Sacramento on the 19th day of August, 1850. and. except when absent in the wars, he has since resided in this State. In his first two-and-a-half years in California young Bell, engaged in mining, with moderate success. In October, 1852. he went to Los Angeles. In 1853 he became a member of the famous Ranger company, organized by ihe State for the purpose of putting down the Joaquin Murietta outlaw band, and of pacificat- ing turbulent California, embracing the region extending from San Francisco to San Diego. In 1856 he joined the .American army of occu- pation in Nicaragua, under President Rivas and General William Walker, and although only twenty-five years of age. he rapidly arose to the command of a six-company battalion and served as such until the end of that most san- guinary war. In 1858 he returned to Indiana and took an active part in the border troubles that flamed along the Ohio river. For his conduct during that epoch he has been enrolled on the list of border heroes. This part of the Major's career, however, pertains to Indiana, and appears on the historical records of that state. The late Secretary of State, Walter Q. Gresham, who was intimately associated with Major Bell during the Civil War and the bor- der troubles preceding the outbreak of actual hostilities between the North and the South, in a conversation with Judge E. H. Lamme, for- merly of Indiana, now a leading lawyer of Los Angeles, a short time prior to Judge Gresh- am's death, said : 'T think Horace Bell is the most courageous man I ever knew." In 1859 Major Bell went to Mexico and joined the arruy of the great patriot, Benito Juarez, and served in a campaign in the "Re- actionist" war — Miramon against Juarez. Re- turning to California in i860, he in March, 1 861, went east to take part in the war that was then imminent. He went via San Fran- cisco. Panama, Havana, New Orleans, ar- rived at Indianapolis in April and joined the first regiment he met, the Sixth Indiana, and was mustered into the L^nited States service April 22. 1861. He served until the end of the war. At headquarters. Department of Louisiana, where Major Bell had served on the staff of General Canby for about two years, a record of his service was made up, and recorded at the war department, to which a certificate was appended, from which we make the follow- ing extract, referring to Major Bell: "His gallantry, resolution, promptitude and intelligence have been marked and commended. He is a man who does what he undertakes, and is to be trusted in wdiat he does. He has rendered the government of the United States great service." At the close of the war. Major Bell returned to Los Angeles, arriving there in July, 1866. In 1872, he opened a law- office, and took a leading place at the bar, and has maintained such position until the present writing. In his modest way. Major Bell does not claim any particular merit, but will sometimes say : "Well, I guess I am about as good as any of them." One time (it was in November. 1882) the Major stepped out of the legal harness and assumed the editorial tripod. He attacked the local government, judicial and municipal, which he charged to be utterly corrupt. He declared war on the whole, excepting only from his onslaught Judge Volney E. Howard of the Superior Court, and A. W. Potts, county clerk, whom he regarded as absolutely honest and incorruptible. The result of the next election was gratifying to the Major, and he was able to say in 1888. upon his retire- ment from his editorial chair: "I have hung the gory scalps of the last mother's son of them on the ridge-pole of my tent." This was no easy matter for the Major, however, for twenty civil suits for libel were brought against him. aggregating, in alleged damages to the characters of the complainants, the sum of over $100,000. All of these came to naught. In his paper. Major Bell attacked the police force and its chief until the latter offi- cial invaded the editor's sanctum and opened History of the Bench and Bar of California. 783 upon him with a 44-calihre revolver. The Major escaped with a slight powder burn on his right hand, and the chief escaped by hasty riight, leaving his official chapeau and his re- volver as trophies to adorn the editorial office. In 1881 INIajor Bell published a book on California life, called "Reminiscences of a Ranger," a most readable and popular work ; and he now has ready for the press another similar work, besides several others pertaining to like reminiscences. On the day Fredericksburg was fought De- cember 14th, 1862, the Major was married in New York to Miss Georgia Herrick, of the famous Herrick family of New England, and a niece of the celebrated Dr. Herrick, of Albany, N. Y. The lady accompanied her husband to the seat of war in the Gulf States, and re- mained at New Orleans until the family home was established at Los Angeles. In that city she became so poular on account of her ami- able disposition and sterling qualities that the city council named a street in her honor, ■'Georgia Bell," one of the finest suburban avenues in Los Angeles. Mrs. Bell died June 8, 1899, having carefully reared a large family. DAVID P. BELKNAP. This gentleman, now retired, was for over forty years at the San Francisco ))ar. Born in the city of New York in 1825, he attended school in his native place, and subsequently completed his education in the University of New York, graduating from that institution with high honors in 1844. He arrived in California in December, 1850, and first lo- cated in San Jose, having previously been admitted to the bar by Hon. Greene C. Bron- son, then Chief Justice of the Supreme Court of New York. In 1852 he removed to San Francisco to pro.secute various Spanish land claims before the United States land com- mission. Here he continued to practice until 1857, when he entered the office of William Duer, who had been elected as county clerk of San Francisco on the People's party ticket. Mr. Belknap had the entire supervision of the probate department throughout the two years of his connection with the office. He, how- ever, found time during his otherwise leisure hours to prepare and publish a work on pro- bate practice, and likewise Bancroft's first law form book. He resigned his position in the county clerk's office to resume law prac- tice. For six months he had associated with him James F. Bovvman. who afterwards abandoned the law for journalism, in which profession he became distinguished, and who died at San Francisco in i88r. Mr. Belknap formed a partnership ne.xt with S. S. Wright, for a brief period, after which he was asso- ciated with John F. Swift, who was destined to attain eminence and wealth. In 1861 Hon. Edward Tompkins, formerly law partner of Daniel S. Dickinson, in New York, w,is Mr. Belknap's associate, the firm being known as Tompkins & Belknap. .In 1862 Joseph W. Winans, the leading pioneer lawyer of Sacramento, removed to San Francisco and became connected with the firm, and when Mr. Tompkins withdrew, in 1863, the two former continued in business as law partners for over twenty-five years, in the same office. Mr. Belknap is a gentleman of refined taste and is an enthusiastic admirer of paintings, statuary, and rare and unicjue articles of vertu. The Art Union, Bohemian, and other literary and social clubs long acknowledged him as one of their choicest and liveliest spirits. Of the first named association he was once the president and the inspiring and directing ge- nius. He is a fine belles lettres scholar, and his esthetic accomplishments render his society highly attractive. Although dignified in de- portment and reticent and reserved in the society of formal acquaintances, Mr. Belknap has a rich fund of humor, and wdien com- mingling with intimate companions he con- tributes greatly to the enjoyment of the occa- sion. F. A. BERLIN. Frederick Augustus Berlin, a native of the state of John Marshall, which has contributed so largely to the bar of California in all pe- riods of our history, was born on August i, 1848. He received his education at Roanoake College, Washington and Lee University, and the University of Virginia. At the institu- tion last named he prepared for the bar, and took the degree of Bachelor of Law. Mr. Berlin came to California in February, 1875, and has always since practiced law in San Francisco. . W^ilhout especially attracting the public eye, he has, for some twenty years, prosecuted a large general law business, with exceptional success. He is a man of strict morality, with a high sense of honor, and an exact interpretation of justice, as well as learned in the law ; and his pro.sperity has been the result of correct methods. As the product of faithful professional toil, coupled with some business enterprises, he has accu- mulated a considerable fortune. It has been given us to observe Mr. Berlin's career at the bar from its inception. He en- joys universal respect, and dignifies his calling. He is an intluenlial member of the Presby- leri;in Chnrcli. Mr. iUrlin married, at .S;in Francisco, a \-oung laily who is :i native of his own stale, one of the (l;mghters of the late Colonel D. [,. Snioot. who was district attorney of San Francisco in 1880-81. They have several bright children. c.\iai:ki r I). Calvert I", ['.ird w,i> born at Fayetteville, \lal>aiua, in iSji. With bi> narents, he came lo San Jose, ('alifornia. in 1851. where he has ever since resided. He acciuired his education mainly at the fjates San Jose Institute, a fa- mous school of earlv days, and at the Colletre of California. During tlie year 1871 he com- 784 History of the Bench and Bar of California. meiiced the study of law. but did not then in- tend to apply for admission to the bar. Later, however, he had occasion to use his legal knowledge and anplied for and obtained from the Supreme Court of California his license as an attorney and counselor. Since then he has applied himself with an earnestness that has lirought him success. His sound judgment and knowledge of the law have secured for him a large clientage. Mr. Bird was a commissioner of the United States Circuit Court, Ninth Judicial District, during the years 1889 to 1897. Those who know him recognize him as a man of enlarged views and great power of mind. He is a man of strict integrity, a safe counselor, always liberal and practical, and possessing the cour- age that "dares to do right." JAMES H. BLANCHARD. James li. lilanchard was l)()rn in Niles, Michigan. December 6, 1847. He entered Mich- ip^an University in 1866 and was graduated from the literary department in 1870. He studied law in the office of Felch & Grant at Ann Arbor, and was graduated from the law school of the Michigan University, in 1872. he was admitted to the bar by the Supreme Lourt of that state in the same year. He came to California in 1873. and was also admitted to the Supreme Court of this State. He located at Los Angeles, and entered on the practice of law. In 1890 he undertook the management of the Calif oniia I'oicc. the organ of the Prohi- bition party, but in 1894 he again returned to his profession. In 1896 he was the candidate of his party for attorney-general, and in 1900 was nominated and ran as Presidential elector. He is an enthusiastic expounder of the doc- trines of the Prohibiton party, and usually takes the stump in each campaign. He is mar- ried his wife (formerly Miss Lucy Shackel- ford) also takes an active interest in all tem- l)crance work. They have no children. ROBERT E. BLEDSOE. Robert E. Bledsoe was born on the 26th day of April, 1845. near Shelbyville, Mo. He is a grandson of the distinguished Senator Jesse Bledsoe, of Kentucky. The father of R. E. Bledsoe was born at Frankfort, and his mother at Paris, Ky., each having the advan- tage of a most liberal education. They lived during the years of Robert's minority, on the frontier, where school houses were few and far between, and it so happened that Robert had no earlj' educational advantages. The family moved from Jackson county. Ore- gon, in 1869, to the San Bernardino Valley, where they engaged in farming. In 1875, while Robert was engaged in haul- ing lumber from the saw mills in the San Bernardino mountains over one of the most dangerous roads in the state, he was elected justice of the peace for San Bernardino township. He held the ofifice for the term of two years, during which lime he studied law as well as justice. In 1877 he was admitted to practice in the District Court, and in 1883. while he was district attorney of San Bernardino county, he was admitted to practice in the Supreme Court, where ever since he has maintained a high standing. Mr. Bledsoe began the practice of law under great disadvantages. He was entirely with- out means and without even a common school education, and at the time he entered the legal arena the San Bernardino bar was one of the most distinguished in the State. Mr. Bledsoe was energetic and read and studied law incessantly ; he also read history exten- sively, and pursued many other subjects tl necessary to be understood by every success- ful lawyer. He rose rapidly in the profession and for several years has been recognized as one of the best lawyers in Soutliern Califor- nia, and especially on the criminal side of the practice. He first won distinction in this branch of the law in the prosecution of William R. McDowell, whom he convicted of murder in History of the Bench and Bar of California. "85 18S3. when he was district attorney. Mc- Dowell was executed for the crime at San Bernardino in 1884. It is said that our sub- ject has defended more men charged with murder than any other lawyer in Southern California, besides assisting in the prosecution of several celebrated cases. His success, how- ever, has been as attorney for the defense. He secured the acquittal of William Rawlins at San Diego in 1889. charged with the mur- der of Captain Gilbert. This contest was a memorable one ; the prosecution was most persistently and ably conducted. His de- fense of Charles Marshall in Riverside county was considered the most remarkable ever made in that county. Marshall was the only one of Bledsoe's clients upon whom the death sentence was ever passed. However, he secured a reversal of the judgment in the Supreme Court, and upon a second trial Mar- shall was convicted of murder in the second degree and sentenced to sixty years' impris- onment. Marshall had killed two men in the row, one of them an officer, and public opinion w-as very strong against him. The acquittal of Horace Adams. William Farley, Chas. Grimes and, more recently, Geo. H. Walker, the Redlands policeman, besides many other defendants who were only con- victed of mai;islaughter, makes a flattering record of successes. In the last three cases, Mr. Bledsoe was ably assisted by his son and partner, Mr. Benj. F. Bledsoe, a young lawyer of marked ability. Young Bledsoe made the principal argument in the Walker case, and his argu- ment was the subject of many comments from the densely crowded court room. Mr. Bledsoe is well known all over the State, always faithful to his clients, active and persistent. He is a good trial lawyer and always thoroughly prepared; a rapid and merciless cross-examiner, and manages to get 'on the good side of a jury. Judge Smith, of Los Angeles, who presided at the murder trial of John F. Milner, in Riverside county, where Bledsoe was assist- ing in the prosecution, said that it seemed as if the jury regarded this advocate, while making his argument, as one of their own number. JOHN II. P.OAl.r. John Henry Boalt was born at Norwalk. Ohio, on the 29th day of March, 1837. After graduating at Amherst College, he concluded to make mining and mechanical engineering his profession, and with that end in view he went to Germany, and spent one year in study at Heidelberg, and Iwo years at tlic famous mining sclmdl at Frichurg. at which so many of our leading mining experts and engineers graduated. .'Xfter completing his course at these universities, he spent some months trav- eling in Europe preparatory to liis return to the United States. Our great w;ir breaking out, he at once returned, entered the arniv and was appointed lieutenant in Company D. of the Eleventh Ohio Cavalrv. He was .soon after transferred to the Sign.il Ciirp«. and placed on the stall of General Curtis at Fort Leavenworth, where Ue served until the close of the war. .Nevada liad now been admitted as a state. 1 he great Conistock lode had been discovered, and was yielding its output of the precious meials in such richness and quantity as had iievt-r before been known in the annals of mining. I^aturally, the young man turned his attention to this Eldorado, He located at Austin, Nevada, then a thriving mining camp called the Reese River Mining District, newly discovered in Lander county, and supposed at that time to equal, if not excel, the famous Comstock lode at Virginia City. Everything was life, activity and speculation. In 1865 he formed a partnership at Austin with Charles A. Stetefeldt in the mining and assaying busi- ness. It was during their partnership that the Stetefeldt Furnace Company was formed, for the purpose of reducing metalliferous ores. The process, in w'hich he was one of the promoters and owners, was patented, and from its success he and his associates derived a large revenue. But this was not the vocation in life that came naturally to him. He soon abandoned it for the broader field of the law. His inti- mate associates at this time were members of the bar, and Austin had a bar which would be eminent in any city. Men of great legal at- tainments had come from all parts of the country, allured by accounts of the fabulous wealth of this new mining region. With such associates it is not strange that he drifted into the legal profession. His instincts, too, all turned in that direction. He delighted in dis- cussing legal propositions, and loved the law as a science. If there is anything in the the- ory of heredity, it is well exemplified in his case. He came of a long line of illustrinus ancestors, on botli sides of his house, eminent in the legal profession as well as in politics and public life. His father, Charles L. Boalt, was a lawyer of large practice and high repu- tation in northern Ohio. His mother was a daughter of Roger Griswold, a great jurist in his dav. and Secretary of War under John .\dams ; his great-grandfather. Matthew Griswold, was Governor of Connecticut and President of the convention of that state which accepted the Constitution of the United States; his great great-grandfather. Roger Wolcott. a signer of the Declaration of Independence; his great un- cle, Matthew Griswold, was Chief Justice of the state of Connecticut, and his great uncle, I"!l)enezer Lane, was for a long jteriod Chief Justice of the state of Ohio. When the county of Wiiite Pine was formed 'Uil raclic<' by the State Snnremc Court. Mr. Bordwell came to C";ili ti irnin in :889. locating at Los Angeles, and has always since lived there, acquiring a fine business and at- taining professional prominence. In 1883 Mr. Bordwell married Miss Marv E. Willits. daughter of Hon. Edwin Willits, then member of congress from the Second district of Michigan. The fruit of this union is a daughter, born in 1890. NICHOLAS BOWDEN. Nicholas Bowden was born in Ireland, forty- eight years ago, and came to America with his parents while yet an infant. His family set- tled in Cooperstown, New York, where he spent his youth and acquired such education as the public schools of those days afforded. At the age of fifteen he left school to enter the world of action, and there complete his education in the great university of practical experience, where he learned to do by doing. In 1869 young Bowden decided to leave New York, turned his face westward, and located at Evansville, in Southern Indiana, where for several years he filled responsible positions as accountant, cashier and manager for two of the principal commercial houses of that city. Sub- sequently he assumed the management of the Daily Courier, one of the leading newspapers of Indiana, took an active part in state poli- tics and helped to direct the public affairs of the state, until 1877, when he found it nec- essary to seek a milder climate. After vis- iting Colorado and several sections of Cali- fornia, he went to San Jose. A few months Slay in the Garden City brought him good health, and the conviction that the congenial climate and superior social conditions of the Santa Clara Valley were as nearly perfect as it was possible to find, and he decided to make San Jose his permanent home. Later in the same year Mr. Bowden took the management of the Daily Herald, and for three years conducted it with skill and vigor. With that force and energy, characteristic of the man, he elevated the standard of the news- paper, and widened its infiuence, until it be- came a power in Democratic circles, both local and State, and placed it upon a firm, political and financial basis. Mr. Bowden always had .1 strong loaning towards the law. and in the winter of 1880- 81 he took up the study and finished his read- ing in the office of Judge Lawrence .\rcher in i88j. Immediately after his admission to the Supreme Court, in November of (lie latter year, a copartnership was formed between Judge Archer and himself, which continued for ten years. His jiresent office, rooms 45. 46. 47. -48 and 49 Rea Building, at the corner of Santa Clara and Market streets, in the city of .San Jose, are models of convenience, per- fect in their appointments, and e(|uipned with one of the best working libraries in the State. On October 4, i88.^ Mr. Bowden married Miss Sallie Trimble, daughter of the late John Trimble. There are five children of this mar- riage, four bovs and one girl. The Howflen lionu'. the residence of the f.imilv. on "Thr 790 History of the Bench and Bar of California. Alaiiioda," is one of the most beautiful in the valley. During Mr. Bowden's residence in Califor- nia he has always taken a citizen's interest in local and State politics, but is in no sense a politician, and has never been an applicant or candidate for office. From the very begin- ning of his career as a lawyer he has enjoyed a lucrative practice. He has been engaged in many of the principal civil and probate cases, not only in Santa Clara county, but through- out the State, and has been on one side or the other of much of the important litigatioii of Santa Clara and adjoining counties, during the last eighteen years. Mr. Bowden is the President of the Santa Clara County Bar Association, and has been at its head since its organization. He is also a trustee of the San Jose Law Library and its present Treasurer. E. C. BOWER. H. C. Bower was born in Cuthbcrt, Ga. His great grandfather was a sculptor and resided in Providence, R. L, in 1776. His grandfather, Lsaac Bower, was a merchant, and moved to Georgia in 1809. Lsaac E. Bower, the father of E. C. was a prominent lawyer of Georgia from 1S50 to the time of his death in 187,^. E. C. Bower was the fifth son. In 1867. when seventeen years old, he was deputy United States internal revenue collector for a sub-district of Georgia. He was admitted to the bar in 1868, when a little over eighteen years old. In 1871 he was a delegate to the Democratic state convention in Georgia. In 1872 he was alternate delegate to the national Democratic convention at r-5altimore. He was a delegate to the St. Louis Democratic conven- tion of 1876, which nominated Tilden and Hendricks (a distinguished honor for a young man, when Georgia Democratic leaders were striving lor the distinction), and having as as- sociates Hon. G. M. Smith, the Governor of Georgia, Hon. Rufus E. Lester, P. M. B. Young, Mark H. Blanford and John L Hall, with Hon. Patrick Walsh, afterward United States senator, as secretary of the delegation. In 1877 he was nominated state senator and was elected w'ith but little opposition. During his four years' term in the Georgia senate there were two impeachment trials of state officers, in which he took a prominent part. In 1879 he married Miss Harriet S. Daffin, of Georgia, by whom he has had eight children. After his marriage he took no further part in politics, but devoted his time to his pro- fession. He was considered a successful law- yer in Georgia, as the many decisions in the Supreme Court reports of Georgia, in which he was counsel, will attest. In 1884 he was mayor of Blakely, Georgia, where he then resided, and a year or so prior was master of the Masonic lodge of that place. Mr. Bower, in 1886, moved from Georgia to Los Angeles, Cal., where he has since resided. In California he has taken no part in politics, except in 1894, when he was the Democratic candidate for district attorney for Los An- geles county, ana went down to defeat with the balance of his ticket. He has practiced law in Los Angeles since his residence there. His practice in the Superior Court of that county has met with varied success. But the Supreme Court reports of the State show many questions presented by him in which his views prevailed. A few of these maj' be men- tioned. The case of Holmes v. Heathun is one in which the question of homestead rights was raised, and the lower court was reversed. In Marriner v. Dennison (which was twice ap- pealed by defendant) the last judgment was reversed, on the ground that it was against the preponderance of evidence ; there being a con- flict of evidence in the case — something un- usual in our Supreme Court decisions. In Royal V. Dennison the case was decided against liim and a new trial refused, and the decision in department affirmed the judgment of the lower court. On a hearing in bank the court reversed the department and the lower court. The question as to whether there could be more than one original contractor in a build- ing contract was first raised by him in La Grail & Craft v. Mallord. and he was sus- tained. While the litigation conducted by Mr. Bower has not been of State notoriety, yet the prin- ciples involved have been important and often original, and the conduct of his cases has shown the work of an expert in the profes- sion. There is, perhaps, no lawyer in the State who is better posted in the practice of the courts, or who is more familiar with the pro- visions of the codes, and the decisions of the Supreme Court. History of the Bench and Bar of California. 791 F. S. BRITTAIX. Frank Sniitli Brittain is a native of Phila- delphia. He was educated as a civil engineer, and for a few years practiced as such l)oth in railroad and municipal work. While thus engaged he was required to make a special study of the land and commercial laws of Spain, Mexico and Texas. Under these cir- cumstances the transition from the engineer to the attorney was natural. Under the tute- lage of one of the most eminent lawyers in Te.xas he prepared for the bar and was admit- ted to practice in that State. In 1894 he came to San Francisco, since which time he has been engaged, either as counsel or in assist- ing counsel, in much of the important litiga- tion which has occupied the attention of the courts. On the day war was declared with Spain, Mr. Brittain tendered his services in any capacity to the Governor and to the secretary of war. By the latter he was ordered to appear before a board of army officers for examma- tion for a commission in one of the three regiments of volunteer engineers. He there- upon applied for a second-lieutenancy, but as a result of his examination, he was. by the President, commissioned first lieutenant in the Second regiment of engineers. His great regret is that his command was not on the firing line. It had, instead, nearly a year's hard service in Honolulu. During that time Mr. Brittain was examined by Chief Justice Judd, and one of his associates, and was admitted to the bar of the Hawaiian Repub- lic. In the military service he was the only judge-advocate in the district of Hawaii, and he was continually on duty as such, as well as acting as the legal adviser of the military authorities, during the period he was in Hono- lulu. Prior to going into the military service, Mr. Brittain was first the managing clerk of the then large offices of Dolmas & Shortridge, and was afterwards ;i niembor of the firm of Shortridge, Beatty & Brittain. The busi- ness of the firm was continued in the old name until Mr. Brittain's return from Honolulu, when he withdrew from the partnership and opened offices alone. Fie believes in the relig- ion of unremitting, painstaking lalxir. ,ind attributes what success he has had in the law, largely to the methods of thought in which he was drilled in, accpiiring his eclucation as an engineer. JULIUS BROUSSI'.AU. Mr. Bi-ousscau was born at .Maloiu'. iM-;ink- lin county. New York, on December 17. 18^4. In his infancy his parents moved to Monroe county, in lh;it state, where he was educated in the public schools and in Fima Seminary, and lived there until he reached the age of twenty- five years. .After teaching school for eight or nine years, he went to the city of I'lint. Mii-hi gan, and rearl law in the office of Mmi Wil Ham Newell. District Judge. In the fall of 1861 he was admitted to the bar of the Supreme Cotu't of Michigan, and eomineneed jiractice at Flint. After two years he removed to the city of Saginaw, where he practiced with good suc- cess for about seven years. In this period he served two terms as city attorney. His health becoming impaired, he removed, in the spring of 1870, to Kankakee, Illinois. There he had another seven years of professional prosperity, at the end of which time he moved again, for the same cause as before. He was then in his second term as city attorney, but resigned, and started with his family for Cali- fornia. Settling at Los Angeles' on the i6th of Jan- uary, 1877, Mr. Brousseau shortly afterwards entered into partnership with Hon. Volney E. Howard, and the latter's son, Frank Howard, the firm name being Howard, Brousseau & Howard. The association of these gentlemen was dis.solved when Judge Howard went on the bench three years later. Mr. Brousseau then practiced alone until May. 1886. Ex-Judge David P. Hatch, then moving to Los Angeles from Santa Barbara, the firm of Brousseau & Hatch was formed, and CDUtinued until 1882. Mr. B.rousseau's practice in this State has been in the civil line, and of recent years he has given much attention to water litigation, his practice having been attended with nutch success, although, in Michigan, he was chiefly distinguished for his ability in criminal cases. His aged parents from the East joined him at Los Angeles in 1883. He bears his father's full name, and his mother was Miss Marienne Jarvis. Both were of French ])irth. His father is still living, at the age of eighty-eight years. Mr. Brousseau married Miss Carrie Yakeley at Ypsilanti, Michigan, in the fall of i860. The ladv is a native of New York, her father being English, her mother German. They have two sons and two daughters, all grown. The eldest daughter. Miss Kate, after graduating from the State Normal School at San Jose, traveled in Europe for a year and a half, and became proficient in the French and German languages. She has attended the Lhiiversity of Paris for five vears. and is now one of the faculty of the State Normal School at Los .\ngeles. The other daughter is accomplished in nnisic. The sons. Edward and Rov. are graduates of the Los .Angeles High School. Edward has care of his father's orange orchard at Redlands. and Roy is in the office with his father and fitting himself as an illustrator and designer. Mr. Brousseau is a Mason of the Scottish Rite, thirty-second degree, and has been Mas- ter of Rose Cross Lodge of Los .\ngeles. In politics he is a Democrat, and has been the candidate of his parly for Superior Judge, rutuiing against gre.at political odds, and fail- ing of election. He would make a most excel- lent Judge, being of balanced mind, of judicial temnerament. and well grounded in legal science. He is still .active and jM-osperous at the bar. and is imivers.illy i-sleenied as a m.in and eiti/en. U. W. BROWN. •Mr. I'.rown was born Novemlier 24. i8(io, \\\ l)'l\;ill) eounlv. Missoiu-i. lb' e.nne across 792 Hisiury of the Bench and Bar of Califonii the plains with his parents in 1865 to Oregon, and thence, in 1S67. to Colusa county, Califor- nia, where he has since resided. He was raised on' a farm; attended the public schools and worked in harvest fields in summer to defray his expenses at college in winter. He was graduated from Pierce Christian College in 1882. with the degree of B. S. et L. Mr. Brown taught public school for four years. He was admitted to practice before the Supreme Court of this State in 1887. He located at Colusa, and has there practiced his profession ever since with unvarying success. He has one of the best working libraries in Northern California. He is identified with va- rious business interests in Colusa county, and has been successful in business as in law practice. He was married to Miss Emma Maurice Lovelace in 1889. They have four children. large as to compel iiim to remove to the Me- tropolis, with his family, consisting of a wife and four chudren. Continued success has at- tended Iiim in San Francisco, and promises to follow him to the end. i).\xip:l w. burchard. Daniel W. Burchard is a native of the state of Missouri, and was born about forty-five years ago. His father was one of the pioneer ministers of the Methodist Church, and ar- rived in California witli his family when our subject was a child. Mr. Burchard obtained a good classical and legal education which enabled him to commence practice as soon as he arrived at his majority. He located first in Hollister, San Benito county, where he was soon selected as city attorney. After a few years he felt impelled to remove to a larger field, and went to San Jose. There he soon entered upon a suc- cessful career at the bar. For six years he was connected with the district attorney's of- fice, during which time the interests of the county, civilly, were faithfully guarded, and society also well protected from criminals. .After leaving his official duties, Mr. Burchard opened up offices as a general practitioner, and in addition to civil business, achieved a state reputation as a criminal lawyer. Quite recenth' his practice outside of San Jose became so JAMES H. BUDD. Among the members of the bar of Stockton whose talents have brought them name and fame, none have been more distinguished than this gentleman. The e.x-Governor was born at Janesville, Wisconsin, May 18, 1851, and is a son of Superior Judge Joseph H. Budd. He accompanied his parents to California in 1859, and since their location in Stockton, in i860, he has always made that city his home. There he commenced his education, and from 1866 to 1869 attended the Britan College School. He next attended the State University and was graduated there in the class of 1873. The profession of law w-as from an early age marked out for him by his parents' wishes and his own inclinations, and in 1869 he com- menced preparations therefor by reading in his father's office. His legal studies were kept up during the progress of his college course, and in 1874. the next j-ear after graduation, he was associated in practice with his father for some time, and afterward with Judge Swin- nerton. Since the dissolution of the latter partnership he has had no colleague in his law practice. In 1873-74 he served as deputy district attorney under A. W. Roysden. In 1876 he received the unanimotis nomination of the Democratic convention for assembly- man, but declined. In 1882 he was nominated b}^ the DeiTiocratic convention for congress, and undertook what was generally considered a hopeless race. It assumed a different aspect, however, under the vigor of his canvass, and when it was found, after election, that he was the fortunate candidate. luany persons who thought that the Republican nomination meant election were surprised. He was. however, the first Democrat ever elected to congress from that district. As a member of the national house of rep- resentatives, he served on the committee on education and the committee on invalid pen- sions. He introduced and carried through house bill No. 100. in the interest of the set- tlers on the Moquelemos grant, a measure which had been pending for j-ears. and which was carried in the house only by earnest and untiring labor. He also secured an unusually large appropriation for that district, and the money for the dredger work on the Stockton channel. He brought about the passage of an amendment to the Indian appropriation bill, making the Indians amenable to state and territorial laws. He fought for and secured a special date for the consideration of the Chinese bill of 1884. after its friends generally had considered it lost. He took an active part in the discussion on Chinese matters, on the interstate commerce bill, on the principal appropriation bills, and for fortification meas- ures. The i)ath of a congressman during his James H. Budd History of the Bench and Bar of California. '95 first term in attempting to secure recognition is generally a hard one, but many veterans did not come out of that congress with so good a record. During the progress of his term the State of California was reapportioned, and the newly constructed district of which San Joaquin county formed a part was so composed as to make it as strongly Demo- cratic as it had before been Republican. When the next congressional convention met he was unanimously nominated, and the convention adjourned but Mr. Budd felt that a proper regard for his own interests required that he should forego the certain re-election which his nomination implied, and declined to accept the proffered honor. This necessi- tated the reconvening of the delegates, and a second convention was called, resulting in another unanimous nomination of Mr. Budd, and the appointment of a committee to urge upon him the necessity of his acceptance. The committee failed of accomplishing its ob- ject, however, as Mr. Budd firmly declined to take the nomination. He has, however, al- ways used his most earnest efforts for the suc- cess of the Democratic party. As chairman of the city and county central committees he carried San Joaquin county for the Demo- cracy at the general election of 1888. He was six years a trustee of the Stockton Cil}' Li- brary and made it a depository for ten years' issue of public books and documents. He gave up the position of trustee of the library in i88g to accept the office of police and fire com- missioner of Stockton. He became connected with the National Guard of California as a cadet at the State University and he was graduated with the rank of first lieutenant. Since then he has advanced rapidly to the front and has been major on brigade staff, lieutenant colonel on Governor Trwin's staff, major of the line and brigadier general. Mr. Budd has taken an active and important part in nearly every movement of a public character concerning his section of the State for several years ; yet it is in his profession as a lawyer that his real success has been made, and the general recognition of this fact has resulted in bringing him a practice so ex- tended that an ordinary man could not handle it. His opinion, once given to client, has come to be regarded with much of the esteem of a verdict from a court, so successful has been his practice. He prosecutes his profession in all the courts of the land, having been admitted to the bar of the Supreme Court of the United States in 1884. He is a clear and rapid rca- soner and sound in his conclusions. His strength of character is well exhibited by his declination of a certain re-election to congress — something that history is seldom called upon to chronicle. No man in Central California has a larger circle of warm personal friends than has James H. Budd. He was elected Governor of the State in 1894, as the Demo- cratic candidate, when the Republicans elected every other State officer. I lis term I'udi'd in January. 1899. The State has never had a more vigilan'j or industrious chief magistrate. He main- tained a watchful interest over all public bodies and institutions, and was constantly visiting them, keeping himself well-informed as to all their needs, as well as regarded any delin- quencies or irregularities. It was to Governor Budd that applications for clemency were made in the cases of Dur- rant, found guilty of the "crime of a cen- tury," and Worden, convicted of murder in connection with the most serious railroad strike known to history. In those cases he was required to examine almost interminable records, and he discharged his unpleasant and arduous work with extraordinary patience and comprehension, his judgment leading him to commute the sentence of Worden from death to life imprisonment, and, in the other case, he refused to interfere. His official papers were characterized by strength and exactness of statement, and gen- erally evidenced his strong common sense and enlightened judgment. Upon his retirement from the chair of State, in January, 1899. he became the regular attorney for the board of State harbor commissioners, whose office is in the Ferry building, San Francisco. He has an office in the same place, the duties of this important attorneyship requiring him to spend much of his time in that city. He is attached to Stockton as he has always been, and there keeps his residence and follows actively his profession. WILLIAM P. BUTCHER. On the I4tn day of February, 1854, William Preston Butcher was born on a' small farm in Camaen county, Missouri. He was the ninth of a family of fourteen children. When he was but two years old his father moved to Laclede county, and settled down in what was then the very heart of a wilderness. There was not another family living within an area of ten miles. He and the older sons cleared up and cultivated a small farm of some eighty acres of land. Here he lived with his family until the fall of i860, when he died. He was a man of strict honesty and integrity. His word was his l)ond, and passed current among his friends and neighbors as such. He incul- cated a love for truth and honest)' in the minds and hearts of his family, and all who knew him honored and respected him. He was a member of the Baptist Church from early youth. He would preach to his neighbors at limes, after the work on the farm had been disposed of. He accumulated considerable propertv by honest industry, and was, at the time of his death, in comfortable circumstances. Two of the three older sons then living had married .nul settled in the immediate neigh- borhood. /\boni this time, the great civilizcr of the world ap|)eared in that localils' in the person of the school teacher. Up to this time there had been no schools of any description what- ever. A school was opened in an old log cabin which had been used as a blacksmithy. It was floored with puncheons. Tt had but one door and no windows. It was furnished with •96 History of the Bench a)id Bar of California. rude benches, made of logs split through the center, hewn down smoothh- on one side, holes bored into the other, in which were inserted pins for legs. On these benches sat the pupils, without any support for their backs, and pored over Webster's Elenientarj- Speller. It was in this hut, situated three miles from his home, that William attended his first school in the fall and winter of i860. The term was but three months. This was the first school taught in that neighborhood. Prior thereto the farm- ers had given their entire attention to the cul- tivation of their little farms and the raising of live stock. Soon after this, and before an- other term of school was commenced, the great Civil War broke forth and threw the whole country into confusion and chaos. This portion of the country had been settled up with people from Tennessee and Kentucky. They had an inbred antipathy and hatred for the black man. And any one who dared to es- pouse his cause was at once ostracized, and looked upon l)y his neighbors as even lower than the man whose cause he had espoused. But notwithstanding all this, and the fact that the father's brother, who lived in Wright county, owned slaves, this family remained true to the Union. And it was the only one that did so, in that whole neigiil)orhood. As a con- sef|uence, it became despised by those whfi had previously been its strongest friends and best neighbors. They burned its fences to the ground, destroyed its crops and killed and stolv: its live stock, and threatened the lives of its memiiers. 'Ihe three older brothers enlisted at the be- ginning of the war. in the United States .Army, and served through the entire war. The oldest of the three was promoted to the rank of ma- jor. He was wounded in the right arm by a bullet from the enemy in an engagement on the battle-field. While these were fighting the battles of the I'nion on the field, the mother and children were fighting tlie battle of cold and hunger at home. The mother sheared the .>heep. carded the rolls, spun the yarn and wove it into cloth, and made clothes that covered her children during these four long and bitter years of war. The trials and hardships of that family during that period, where might made right, where the struggle for existence was against ))arl)arous force, where there was no law to api)eal to for the redress of wrong, no human iiand to be lifted in behalf of this poor family, or heart to lend its sympathy, cannot be told in this place. But alone in the midst of mur- derous force, where the evil passions of men went unrestrained, did this heroic woman fight the battle, grander and nobler than ever fought on the field of carnage. Of course, there was no such thing as even a thought of school during these times. And even after the war ended, there remained in that country a horde of skulking desperadoes, known as "bush-whackers," that continued to terrorize the coimtry and prevent the return of ])eople to the pursuits of peace. As a con- sequence. William did not go to another school until he was fourteen years of age. By this time he had practically forgotten the lessons learned in the former term out of Webster's Elementary Spelling Book, and had to start anew. He attended one other term at this age. of three months. After this he had the entire care of the family, his older brothers, who had been up to this time single, became married, and settled down in the neighborhood. Though he did not attend school any more while at home, he studied nisrht and morning. He would build a fire ot logs in the great fireplace at night, and. after the rest of the family had re- tired to sleep, he studied his books by the light of the fire. In this manner he succeeded in ac- cumulating sufficient education to pass an ex- amination for a certificate to teach school. He taught his first term at the age of eighteen years, in the same vicinity where he was raised. Many of his former playmates attended this school. From this time forward he taught from three to six months a year, and attended school the remainder of the year, studying the higher branches of education for a period of about ten years. He also studied law during this period, and was admitted to practice in that profession in all the courts of record of that state in 1882. His health beginning to fail, he was advised by his physicians to seek out-door employment in a more even and milder climate. Soon after this he came to California. Having regained his health, he located in Santa Barbara on the i6th day of October, 1886. where he has ever since lived, and practiced his profession. On the 31st day of January. 1887. Mr. Butcher married Miss Laura Hurtzig, a young lady who was born and raised in Forest Hill. Placer county. California. They have two chil- dren, a eirl of eleven and a boy of nine years. Mr. Butcher has always been a Republican in politics. He never held an office in his life, nor received a penny which he did not earn. He has a cheerful and happy disposition, and is universally liked l)y all who know him inti- matelv. History of the Bench and Bar of California. 79: W. C. BL'RXET'J". This is one of ihc surviving sages of ihe early bar, and merits a much more extended notice than our knowledge and recollections can furnish forth. He is still at the bar in San Francisco, and in good preservation of mind and body. We first >a\v Wellington C. Burnett in Sac- ramento, at the legislative session of 1856; and again at the session of 1857. The legis- lature met annually in the fifties, and a State senator's term was two years. Mr. Burnett was senator at those sessions, representing Yuba and Sutter counties. He came to this State at a very early day, and located first at Marysville, where Stephen J. Field was then at the head of the bar. He became one of the most prominent attorneys, acquiring a great business, and he was sent to the State senate by the newlj- organized Know-Nothing, or Native American, parly. A man of much nat- ural energy, he was in the senate a useful, hard-working member. About two years later he removed to San Francisco, where he has always since lived and practiced. The men he then met at that bar are, with a few excep- tions, no more. We well recall his profes- sional activity- through the years that fol- lowed. In 1870 he was elected city and county attorney, and was re-elected three times, hold- ing for four terms, or eight years ; a pe- riod exceeding that of any other incumbent of the office before or since. During the last four years of this time he was also a New City Hall commissioner ex officio, and for the last two years also an election commissioner, ex officio. Many men have been prepared for the bar in Mr. Burnett's office, some of whom have at- tained both fame and fortune. Of these lat- ter, in conspicuous view at the metropolitan bar, is Colonel E. F. Preston. Fisher Ames was also with him for some time, but was an admitted attorney then. About the 3'ear 1895 Mr. Burnett was called to New York Cit}', to attend to some law business which he thought would occupy only a few weeks' time. While engaged with it, he was employed by persons in that city to at- tend to other matters, and this was followed by other successive professional engagements, which altogether kept him away from home, and busv in the great city for over two years. Mr. Burnett is a man of family. His chil- dren are grown, two of them members of the bar, one of them in practice with him. The wife of his youth is living, and in good health Mr. Burnett is a native of Connecticut, and sevenly-one years of age. R. CAHHJ.. Robinsiin Cabin was born on a farm in Car- roll county. Ohio, April 28, 1828. Flis paternal ancestors came from the Emerald Isle, while those on the maternal side were from Scot- land. He had a fair education for those times — in comnion schools, with an academic course, the latter received at Hagerstown. Ohio, not far from his birtbitlace. Having a desire to study law, but being with- out means, he engaged in school teaching, meanwhile studying for the legal profession as opportunity offered. In 1855 he was united in marriage to Mary M. Cummings, daughter of Dr. Thomas Cunnnings, a celebrated physi- cian of that part of Ohio. Shortly afterwards Mr. Cahill. with his young bride, emigrated towards the setting sun, locating at Kirks- ville, Missouri. Here, in company with a Mr. Waldon. he published the Kirkvillc Entcr[>rise. the first newspaper of that county. In 1858 he was licensed to practice law in all the courts of record of the state, and soon removed to Cedar county, where he rapidly acquired a lu- crative ])ractice. Soon, however, the civil conflict disturbed all peaceful pursuits, and the horrors of war spread over the land. Being naturally averse to scenes of bloodshed and carnage, and be- lieving in the peaceful settlement of all ques- tions through the courts or by arbitration — though he sympatliized with the South — he de- termined t(i take no pan in the war. .Ac- cordingly, in 180^, he sent his family to Ohio, and joining an emigrant train, he crossed the plains and reached California without any serious mischance, save the loss of his fa- vorite horse, which he traded for a yoke of oxen. At Ijbeily. San Joatpiin county, lie taught seliii. il for two years, and at the close of the war he returned to Ohio, and with his family again took up his abode in Missouri. He now settled at Donii)han. Ripley county, where he I)racticed his profession for many years with ni.irked success. Here, in i8(k). his wife died, leaving him two d.iughters. aged seven and nine years. In 1872 Mr. Calnll w.is elected to represent his county in the general assembly of the state. He was re-elected in 1874. and again in 1876. by a largely increased majority. At the close of his third term, his health being impaired, he renmved id Win in criminal cases has long been recognized, and it is safe to say that in this class of work- he has no superior, if he has an equal, in the State. He is the attorney for several import- ant corporations whose business is extensive, and this makes large demands upon his time, and yet he turns a deaf ear to no poor person who has a just cause ;in(1 ;isks his assist- ance. Mr. Chapman is of prepossessing ])ersonality, and has a rich and powerful voice. He is re- spectful in his conduct toward the cunrt. and CfUfteous and generous in his oppdiu'nt IK' talks easily, always In tlie jjdint. and is la conic and forceful in cxiM-cs-.ion. \\c has a keen sense of the ridiculous, is witty, (piick at repartee, and is master of sarcasm. He is always earnest in the conduct of his cases before the court, and is fiften intensely ini- nressive, and alw.iys I'ffeclivc before a jury. He is yet in the prinu' of life, .'ind in .active work. In 1888 he was elecied by a 1 hree-fourtiis ■'■ote of his assembly district to rcprcsriU it in the legislature. Uiion tiic exnir.ation i'\ liis term of office he was tendered ;i utrorniiMs nomination for a sec(jnd term, but declined to be a candidate for re-election. In 1891 he was elected mayor of the city of Oakland by the largest Republican ma- jority ever given to a candidate of that party for the office of mayor. In 1890 a large majority of the congres- sional delegates to the congressional Repub- lican convention of that year earnestly re- quested him to accept a nomination for con- gress, to represent the Third congressional dis- trict of California in the house of represen- tatives. At this time the Hon. Joseph Mc- Kenna, who was then representing the Third district, was, and for a long time had lieen actually engaged in his congressional duties at Washington, to the extent that he had wholly neglected his candidacy for a re-nom- ination to congress. Mr. Chapman thought that under these circumstances Mr. McKenna's devotion to the public interest should not op- erate to defeat his re-nomination, and there- fore declined to become a candidate to suc- ceed him. Mr. McKenna accordingly received a re-nomination. Mr. Chapman is married and has one child, a son. His wife is the daughter of Mr. and Mrs. W. W. Childs of Oakland, California. THOMAS L. CAROTHERS. Thomas Langley Carothers is the son of James H. and Margaret Barnes Carothers, and was born at Carthage, Hancock county, Illi- nois, September 26, 1842. He "crossed the plains" with his father's family in the spring of 1853. His father settled at Stony Point, Sonoma county, in the fall of that year, re- maining there until 1857. Tliomas in the meantime attended the neighborhood school and worked on his father's farm. In 1857 t'l^' family moved into Petaluma, where they re- sided until the spring of 1859, Thomas attend- ing the public schools of that place. In the spring of 1859 the family moved to Sacra- mento City, where the son continued his studies in the public schools until the fall of 1861. At the close of the regular term of the High School of Sacramento, in Septem- ber of tliat year, the young man entered the law office of Harrison & listee of that city. He studied law until January, 1862, when the family returned to Petaluma on account of the great Hood then at Sacramento, On ar- riving at Petaluma our law student enlereil the office of Hon. (ieorge Pearce. where he continued iiis studies until October 5. i8(\^. Me was then admitted to the bar by the Su- prenu' ("omt ot" tlie Stale, liaving become of age onl\- ten days l)etore. .Mr. ( .udilurs began the pr.aclice of j.iw in I'etalnni,!. lie tilled the position of deputy district attorney ot Sonoma county tor two ye.irs. iiikUi- lion. W'illi.ani Ross. In May. iH()(). he removed to I'ki.ih City. .Mendo- cino coinitN'. where he has i)racticed hi- i)ii>- fession ever since. In December, i8()(), he was married to Miss Lucy Pierson. daughter of the late Dr. K. M. and Harriet Piirson. Since his admission to the .Supreme C"ourt he 802 History of the Bench and Bar of California. has been admitted as an attorney of the United States Court and District Courts at San Fran- cisco. In 1867 he was appointed a notary public by Governor Low, which position he has held ever since. He has been district at- torney of Mendocino county for two years, and has been for several years a United States commissioner. In il-!,'^4 Mr. Carotliers was the nominee of the Republican ])arty for congress in the First congressional district of this State. The dis- trict had been giving about two thousand Democratic majority, and yet he came within one hundred and forty-five votes of election, his Democratic competitor being Hon. Bar- clay Henley. In 1888 he was one of the Re- publican nominees for Presidential elector for the State of California, and General Harrison carrying the State, Mr. Carothers was elected and discharged the duties of the position. He was a trustee of Ukiah City for ten years, and during that time was president of the board ()f trustees. For several years he was the law partner of Hon. R. M. McGarvy, who was later Superior Judge. He has acquired a large and lucrative practice; and, particularly as a criminal lawyer, he has won great reputation. In 1880 he was employed by the county to as- sist in the prosecution of the famous "Men- docino outlaws," and he convicted every one of them. In the case of Albion River Railroad Com- pany vs. William Heeser. reported in the 84th volume of our State Supreme Court Re- ports, at page 435. the court, following the argument of Mr. Carothers on his brief for respondent, decided (and it was then so held for the first time in this State), that a rail- road company could first go on and take land for railroad purposes, and have the land con- demned afterwards, with no other liability for damages than such as the company would have incurred if it had secured condemnation before taking possession. In January, 1896, Mr. Carothers lost his wife. He afterwards married Mrs. Lydia I. Reeves, a widow, a most estimable and intelli- gent lady, who had been one of his best clients. He remarked to his friends at the time that he had "lost a good client Init gained an excellent wife." Mr. Carothers is now referee in bankruptcy for Mendocino and Lake counties. He is also mayor of Ukiah. elected as a Republican in a strong Democratic town. R. M. CLARKEN. R. M. darken, who is a prominent attorney at the Sacramento bar. was born in Charleston. S. C. but while quite j-oung removed with his parents to Missouri. He was sent to Ken- tucky to school, and received a classical edu- -ation at the famous Jesuit College at BarHc- town. In December, i860, he came to Califor- nia, where he has ever since resided. Imme- diately thereafter he began the study of law, although he did not commence active practice at the bar for some years later. Like many u'ho have entered upon a successful law career, he spent some years as a teacher in the public -chools, and later was a professor in St. Igna- tius College, at San Francisco; and thereafter i)ecanie an editorial writer and leading re- porter on the great San Francisco dailies. He was elected to the twenty-first (1875-76) session of the legislature, where he was an active, industrious and leading member. Often during this session his ability as a parliamen- tarian and his recognized fairness compelled him to act as presiding officer of his house. I Thomas J. Clunie History of the Bench and Bar of Califoriiia. 805 For many years he was a Justice of the Peace at Folsom, Sacramento comity. At this time Folsom was a lively mining town, and was filled with the good and bad characters which were always to be foimd in those days. The office of justice was much more important in those times than now, and it required a man of courage and ability to meet the demands made upon him. Mr. Clarken displayed courage and made a splendid record. Mr. Clarketi has always been a staunch Dem- ocrat, and his ability as a speaker has caused his services to ^e sought by that party. There are few cities, towns or hamlets in the State of California where the people have not had the pleasure of listening to his eloquent utter- ances. In 1879 he was a candidate for delegate to the constitutional convention, but, like others on his ticket, suffered defeat at the hands of the Workingmen's party. He has always been prominent in the coun- cils of his party in San Francisco and Sac- ramento, and few conventions are held in Sac- ramento in which he is not the presiding of- ficer. No one will contest with him for the honor. W'hiie his party in Sacramento county is great!> in the minority, and one seeking office on the Democratic ticket is considered a mar- tyr to the cause, yet Mr. Clarken has on sev- eral occasions nearly succeeded in being elected to the important office of district attofney. While Mr. Clarken is engaged in general law practice, and has a lucrative civil and probate business, he prefers criminal cases. His ability as a pleader before juries justifies his choice. THOMAS J. CLUN5E. General Clunie was reared in Sacramento and received his education at the public schools of that city. After finishing the high school course he received private instructions from a graduate of Harvard College, studied law and was admitted to practice before he reached his majority, under a special act of the legislature, declaring him of lawful age, when, in fact, he was but eighteen years of age. He entered upon the practice of the law and built up a large and lucrative busi- ness. When twenty-one years of age he was nominated for the legislature, and was elected, as a Democrat, in that strong Republican county. His friends assert that he made a good record for some years there. After- wards he removed to San Francisco, where he continued the practice of the law with great success. In 1884 he was sent as a dele- gate at large from California to the National convention at Chicago that nominated Grover Cleveland for President, and served on the committee on platform and resolutions. In 1886 he was elected to the State senate. His record there is a part of the history of the State. In 1888 he was noniiuaU'd by the Demo- cratic convention for cdngn.ss, and was elected by a clear majority, being the only Democrat that was ever elected from the fifth district, as then constituted. His friends are justly proud of his record in congress. From boyhood General Clunie took an active interest, and was a staunch friend of the Na- tional Guard of California, it is said he had two-inch heel boots made, to render him tall enough to join the militia. He remained an active member for ten years, retiring from the State militia as brigadier-general, com- mander of the Fourth Brigade, N. G. C. Dur- ing all this time he continued the practice of the law. His investments in outside matters were to good purpose. He became interested in business affairs and enterprises, nearly all of which prospered, until now he does but little law practice, his own affairs having grown to such magnitude as to require nearly his entire time. Among some of the important cases in which he has been employed were Hoagland vs. the City of Sacramento, when Hoagland et al., residents of Washington, Yolo county, sued the city of Sacramento^ for damages oc- casioned by the straightening of the channel of the American River, thus causing the river at high water to overflow and flood the town of Washington. The damages claimed were about $200,000. The case was finally decided in favor of the city of Sacramento. The case of the people of the State vs. Miles et al., involving $150,000, was decided in fa- vor of Miles. Another case was the People vs. Laura D. Fair, the second trial for the murder of Crittenden. The People vs. Tip McLaughlin, and man)- other cases could be mentioned. Since being declared of age. General Clunie has canvassed the State in every campaign, as a Democrat, except the last two. He made the nominating speech when Washington Bart- k'lt was nominated for Governor of Cali- fornia ; also as senator from San Francisco, he was selected to place his close, personal and political friend, Hon. George Hearst, in nomination for the United States senate. His record in congress and in the legislature is well known and gratefully appreciated. He has given freely of his time and money to aid the cause of Democracy. The General is one of the best liked men in the State, and no one regrets his great suc- cess. He owns the Clunie Building, where his offices arc located, and other valuable estate in San Francisco, and the fine opera house in Sacramento, whicii w.is o|)ene(l in 1885. R. P. CLFMFNT. line is one of oiu' oldest friends. He was in i)ractice in San Francisco, in partnership with the veteran, Merrill, as long ago as 1859. Captain Martin White, who, a decade later, abandoned tiie law for mining enterprises, was associated with the firm, being Merrill. Clem- ent & White. .\nd all three are living today, in fair lualtli and strength, in San l-'rancisco. 806 History of the Bench and Bar of California. Captain While is ilie only one oi the thrco whose residence in the metropolis has been in- terrupted. He practiced law in Virginia City. Nevada, in the flnsh times of "Washoe." We met hnn there in 1863. He was in partner- ship with Dighton Corson, now a Justice of the Supreme Court of South Dakota. After he turned to mining. Captain White had vary- ing fortunes. Among his discoveries was the famous mine named after him. The Martin White Mining Company is still operating their property, the mine being at White Pine. Ne- vada, and their main office in San Francisco. We had to make this allusion to the kind old man. although he is not of the bar. but is still "mining" in his time-worn age. Roswell P. Clement is a native of New York state, born in 1826. (That year. i8j6I How many great men in that year left thr world — Adams. Jefferson, and Lindley Murray among them. And this History will show how many bar leaders of California then came into being. ) Mr. v^iement was a member of the San Francisco board of supervisors for two years and a half, in 1865-67 — the terms of the members having been extended for six months by act of the legislature. He became the regular attorney of the San Francisco Cas Light Company, to succeed Henry H. Haight. when that prominent lawyer was elected Governor of the State, in the fall of '67. Mr. Clement held this important position for about eighteen years. The most note- wort liy and important work of his life, espe- cially in its relation to the public interest, was in the "expansion" of Golden Gate Park. The idea of extending the public reservation for a park through the long stretch of sand-dunes until it reached the ocean, including the two hundred-foot boulevard, originated with him. when a member of the l)oard of supervisors, and there is reason to believe that but for his patient and arduous efforts in that behalf, that redeemed region, now so inviting, would pre- sent a park of not more than three hundred acres. Mr. Clement's year of arrival in California was 1853. His father, Jabi.sh Treadwell Clem- ent, was a millwright by trade, in New York. Mr. Clement is a married man, without chil- dren. At the ap-e of seventy-four years he is still in practice, besides owning some mining oroperty. The interests of the Martin White Mining Company are in his keeping. He has been a clean man always — in his profession in politics, and in all the relations of life. MOSES G. COBB. Moses G. Cobb was born in Princeton. Wor- cester county. Massachusetts. November 24. 1820. He graduated from Harvard College in 1843. and at the Dane Law School ("Harvard) in 1846. He commenced i)ractice in 1846 in Charlestown. Massachusetts, now a part of Boston, and subsequently practiced in Boston to 1861 : from 1862 to 1866 in Stockton. Cali- fornia, and since 1866 in the city of San Fran- cisco. Mr. Cobb has been a very active man in his professional career, covering now a period of fifty-four years. Though turning aside in the earlier years of liis professional life for other activities, he has always remembered, so he says, that "the law is a jealous mistress, and will brook no rival ;' and, hence, for the last fifty years, at least, he claims to have devoted sixteen hours a day, excepting Sundays, to its study and practice. And he has ])een a successful practitioner, if the winning of the numerous cases entrusted to him is any criterion. He has the gift of an intuitive perception of the salient points of a giveti case, and an indomitable energy and perseverance in pushing them to a suc- cessful result. In Massachusetts, after coming to the bar, he met and practiced with such lawyers as Benjamin Curtis, Rufus Choate, Caleb Cush-, ing, Benjamin F. Butler, and others promi- nent in tlie profession. He studied law under Joseph Story and Simon Greenleaf, as pro- fessors at the Dane Law School, Harvard Uni- , ,;T>;i^5?»> versity, and practiced before Judge Story, United States Circuit Court, and Chief Justice Shaw, Supreme Court of Massachusetts. He knew Daniel Webster personally, and had many conversations with him when a student — a classmate of his being at the time a stu- dent in Mr. Webster's office. He is proba- bly the only living link — certainly in Califor- nia — between the lawyers of that generation with whom he practiced in Massachusetts and those of the present day. His tenacitj- of purpose has been another prominent factor in his professional success. He often mentions to his brethren at the bar the case of Oakes vs. Munroe, reported in 8 Cush. Rep. (Mass.), 1851, to illustrate the virtue of holding on. He in that case attacked a landlord and tenant notice, which had been the form in use in Massachusetts for at least fifty years, because the form contained the word "immediately" ; whereas, he contended, that the word was misleading and out of place ; that the exact time of grace, allowed a de- History of the Bench and Bar of California. 807 linqucnt tenant, should be staled in the notice employed to work a forfeiture of the delin- quent tenant's term, although no harm had ever come to any tenant, as to the form in use, from the objectionable word, so far as was ever known. His brethren at the bar ridiculed his con- tention through three courts, there being two appeals. On submitting the case on final ap- peal in the Supreme Court of Massachusetts, after a labored argument on his part, the op- posing counsel simply moved for damages against the appellant for the prosecuting of a frivolous appeal. The Massachusetts Supreme Court, however, sustained the appellant's con- tention, in an opinion of unusual length for that court, and tne case became, and has con- tinued to be, the leading authority on what a landlord and tenant notice in limine should contain in order to work a forfeiture of a lease. During the time he was located at Stockton he tried many important mining cases in the mining counties of Calaveras, Tuolumne and Stanislaus, in which he was successful. Soon after coming to San Francisco he com- menced the action of Samuel Brannan vs. The Central Pacific Railroad Company, and its di- rectors, in the Fifteenth Judicial District Court of San Francisco, charging the directors with fraudulently appropriating to their own in- dividual use the numerous and valuable sub- sidies and franchises granted the road by the Federal and State governments, and by sev- eral counties and cities in this State. The complaint was published, verbatim et literatim, in the Sacramento Union, the next morning, after the same was filed in the Fif- teenth District Court, city and county of San Francisco, taking up every inch of space of that issue of The Union. One thousand copies of the complaint were printed in pamphlet form, and in less than three months, from July, 1870, every copy of the thousand liad been distributed to members of the bar of the State, on special request for the same. The case was subsequently amicably set- tled; but, as after events proved, it left dragon's teeth for the company and its di- rectors. He was magna pars fni in tin- celebrated case of Co.x vs. McLaughlin. This case was in the courts twenty-two years. Tt resulted in the killing of McLaughlin by Cox. which was adjudged justifial)le, and in an nllimate judgment against McLaughlin in favor <>f Cox, in 1888, for $112,000. Another case of his was soniewlial cele- brated, being the breach of promise case of Moore vs. Hopkins. \hv millionaire, which resulted in a verdict against Hopkins of %7S.- 000. This judgment was ultimately settled. Tt was said, at the time the judgment was re- covered — 1887 — that the same was the largest ever before recovered in the Ignited States in such a kind of a case. He has been engaged in manv important cases in the Federal Courts, notably the Rrod- erick will case — Keily vs. McGlynn, reported in 82 U. S. Rep.— in which the United States Supreme Court held that six years laches on the part of the heir of a descendant, though ai)sent l)eyond seas and ignorant of the fraud, gives validitv to a forged will. He was engaged in several cases involving title to Mexican land grants; notably the San Jacinto Sobrante grant, in San Bernardino county, this State, considered then enormously valuable on account of its tin deposits. Socially, Mr. Cobb is a very companiona- ble kind of a man ; ever cheerful, ever ready to tell a good story, or to listen, with equal readiness and keen enjoyment to the story told by another. He is noted for his kindness toward, and ever patient readiness to help, the younger members of the profession, giving counsel, and often trying cases for them, without asking or expecting reward. For fifty years last past he has been an edu- cator in the profession and practice of the law. having had from one to six students all the time in his office. Anson Burlingame, the first American minister to China, was a stu- dent with him, and was his first student in Massachusetts. General Cobb is still in active practice, hav- ing been so long in the profession, he says, it would surely kill him to stop now. WII.I.OL'GHBY COLE. Willoughby Cole, son of Cornelius Cole, was born at Sacramento. California, November 20. 1857. He is a graduate of Cornell University. He lived in San Francisco in 1865-67; 1873- 74. and 1878-79. He then spent two years in Arizona, in mining pursuits and journalism, and returned to San Francisco in 1S82. He was admitted to the bar of the Supreme Court of California on August 9, 1884. He practiced with his father until 1887. when he removed to Los Angeles. He was United States district attorney for the Southern district under Presi- dent Harrison, assuming the office February. i8go. Since the end of his official term he has been engaged in the practice in Los Angeles, in association with his distinguished father. AUGUST COMTE. We come upon a great, suggestive name, worthily borne by a San Francisco counsellor — worthily borne, indeed, as our other friend of the same bar. Fisher .Ames, worthily bears his. But neither Mr, Comte nor Mr. .Vnies is n.-laled to eitiier of tiie masters who first made llieir names illustrious. Our August Comte was lioni in St. Louis, Missouri. September 25, 1842. Hi-- parents were h'rench. his father, wlio also lK)rc the s;nne name in full, being a saddler, and .set- tling with his family early in the fifties at Sacramento. California, where he amassed a siuig competence in his calling. We recall now his nrofitalile saddle store in the capital city, and his stout figure at the front, in the days when we had the honor of being a school fellow of his <\urc noted s.-iu 808 History of the Bench and Bar of California. Mr. Comle received his early education in the public schools of Sacramento, including the High School, passing from the latter, the brightest student, as we can testify, to Harvard University. He was duly gradu- ated, and returning home, prepared for the bar, and was admitted to practice by the State Supreme Court. He had not got fairly started in the profession when he was elected as a Democrat to the assembly. He served in the session. l)cginning December 2, 1867. and ending March 30, 1868, C. T. Ryland of San Jose being the speaker of the house. At the next legislative session, 1869-70, he took his seat as State senator for Sacramento, hav- ing defeated, in a Republican county, the Re- publican candidate, Lauren Upson, who was the veteran editor of the old Sacramento Union. His senatorial term also covered the session of 1871-72. Mr. Comte was in the State senate when he determined to remove to San Francisco, and abandon his profession. Mr. Edward Tompkins of Alameda county (q. v.) hearing of Mr. Comte's determination, and being pro- fessionally ill at ease about it, took occasion in a speech on the floor of the senate to ad- minister a public rebuke to his young friend. Senator Tompkins' speech, in which he "pitches into" Mr. Comte for abandoning his profession, may be found in the old Sacra- mento Union in February, 1872. But the eloquent rebuke did not change Mr. Comte's mind. He had tired of law, and turned to merchandise and trade. He re- moved to San Francisco, in 1873, became a partner in the house of F. Chevallier & Co.. and pursued the wholesale liquor business for some seven years. We remember calling on our old schoolmate, in his Front street store, in 1874. His law books were not parted with, but piled on the floor in a back room. But he said, incidentally , in conversation, "I can make more money in practicing law." He had put $10,000 in cash into the business of F. Chevallier & Co. In 1877 Mr. Comte, in association with Governor Perkins, Dr. Brigham and many others, organized the Franco-American Bank. Mr. Comte taking the position of business manager. This bank disincorporated after a brief life of two or three years, and Mr. Comte. in 1881, resumed law practice in San Fran- cisco. He speedily acquired a good practice, one cause being his fluent speaking of his fa- ther's tongue and his large French acquaint- ance. A fine scholar in languages and classics, an able lawver, he does credit to his French extraction. He is one of the very few good American lawyers of French parentage. In fact, Delmas is the onlv other one in this State whom it is easy to recall. As a rule, when our good lawyers are not American they are either Irish or English. Now and then we strike the Hebrew, as in Benjamin, and the Scotchman as in Alexander Camp- bell. Mr. Comte's law business is principally pro- bate. He has more business in that line than anv other attornev in the State. He has been for twenty years the attorney for the French Bank of his city. He is, however, no spe- cialist, but a broad-minded, complete lawyer. He has been twice married, losing his first wife some years ago. He has several chil- dren. He was a member of the board of freeholders which framed the proposed city charter in 1880; a member of the board of edu- cation in 1895-96, and is now a member of the l)oard of supervisors of San Francisco. HENRY CONNER. Henry Conner is a native of Illinois. He was born in Adams County, near Quincy, on the first day of January, 1851, and lived on the farm, the place of his birth, till grown. With hiin like all farmers' boys, it w-ould be difficult to tell when he began working on the fjarm, for they comirience so early in life that they do not remember. He worked during the summer time, and winter, too, for that matter, but during the winter attended the district school in the neighborhood the portion of the short term when nothing else could be found to do. In addition to the instruction obtained at the district school he studied enough more at odd times to fit himself for entrance to the Illi- nois University, where he spent two years. From there he went to Oberlin College at Oberlin, Ohio. At this institution he grad- uated in 1878 with the Bachelor's decree. After leaving Oberlin he studied law in the office of A.- E. Wheat, at Quincy, Illinois, but was not admitted to the bar till after coming to California. He arrived at San Bernardino in November, 1881, and was ex- amined by the Supreme Court and licensed to practice law at the opening of tlie April term of the Supreme Court in 1882 at Los Angeles. He immediately opened an office at San Bernardino, where he has been en- gaged in the practice of his profession ever since. On April 7th, 1885, Mr. Conner married Mary G. Buford, a native of Tennessee. In 1888 he was elected district attorney of the I T. C. Coogan History of the bench and Bar of California. 811 county tjf San Bernardino and scr\cd one term. Since he left that office he has served five years as a member of the County Board of Education of San Bernardino county, and is now a member of the i^>oard of Education of the city of San Bernardino. T. C. COOGAN. Mr. Coogan has been a busy man at the San Francisco bar for twenty-one years. He came from his native state, Connecticut, where he grew to manhood, and practiced law for seven or eight years. He was born on October 8, 1848, and is a graduate of Harvard Law School, of the class of '71. In that year he was admitted to the bar by the Connecticut Supreme Court. He was a member of both branches of the legislature of that state at an early age, first, of the lower house, then of the senate, serving two years in each body, representing in part Hartford county. He came to San Francisco in 1879, and has prac- ticed law there ever since, having his residence in Oakland during all of that time. He was attorney for the board of State harbor com- missioners for the considerable period from 1881 to 1889. He finally resigned the place. For many years past he has been, and still is, general counsel for the board of under- writers of the Pacific. He is of Democratic politics. Mr. Coogan is well known and generally es- teemed in the great communities on both sides of the bay. With the profession he is in gen- eral favor. The courts cherish for him un- qualified respect. Ready and indefatigable in his professional business, scrupulous and chiv- alrous in dealing with others, of a sincere and cordial nature, there are few men of more agreeable, and, at the same time, more unpre- tentious, bearing. Mr. Coogan married, in New York, shortly before removing to California, Miss Mary E. Watson, a Connecticut lady. There are four children of the union. FRANK L. COOMBS. Hon. Frank L. Coombs, United States attor- ney for the Ninth Circuit, with office at San Francisco, was born in Napa county, on his father's farm, in the year 1853. His father was Nathan Coombs, a noted man in the early history of the Slate, who cultivated a large and fertile tract of land in Napa county, and took an active part in jxilitics. He was a member of the asseml)ly in 1855 and again in i860. The elder Coom})S died in 1877, at the age of 51, leaving a large family. He had been actively identified with the agricultural interests of tlie State, and with the State Agricultural Society for many years. A son of his, who bore liis name in full, and whose profession was lliai of a farmer, died at Napa in the year i89(). at the age of 45. Some say the farmer's callint; has become a profession. Hon. Frank L. Coombs was educated at tlic common schools in California. ;ind afterwards was graduatcu from Colunil)ian Law Scliool. W'aslnnglon. I). C, ni the year 1876. He was admitted to the bar of the California Supreme Court in 1876, and practiced law in Napa City and adjacent cities for some years. For three successive sessions he was a member of the as- sembly from Napa, and was Speaker at the last session, in i8gi. He was again in the as- sembly of his native county and again chosen Speaivcr at the session of 1897. \n 1892 he was appointed by President Harrison United States Minister to Japan, and held the posi- tion for four years. Mr. Coombs was appointed to his present position as United States attorney by Presi- dent McKinlcy, in 1897. On the 5th of Sep- tember, 1900, at the Republican convention at San Jose, he was nominated for congress from the First district. In November follow- ing he was. elected to that office by a verj' large majority. Mr. Coombs is a man of agreeable presence and kind manner a pleasing public speaker, and has canvassed his district and State for his party on several occasions. He has been a prominent member of the N. S. G. W. since that organization was founded, having gone through the several chairs of Napa Parlor, and become a past president of the Grand Par- lor. MICHAEL COONEY. Michael Cooney was born in Ireland m 1839. His parents died when he was a child. He came to the United States when twelve years of age and located in Wyoming county. New York. He attended the public schools of New York state and worked on a farm in summer and went to school in winter, and supported and schooled himself. When eighteen years of age he owned a farm of eighty acres in Kalamazoo county, Michigan, and worked 't liimself. He returned to New York state and studied hard, and at twenty years of age went til Linn county, Mis.scnu'i, where he had a sis- ter. .\ vacancy occurring in the village school, »fter passing examination, he was elected teacher of the school, and served two terms. During this period he studied law and read the elementary law books. He then returned U- the state of Micliigan to settle up some busi- ness affairs, but before he could do so, it was too late to secure a school, and a friend of his who carried on the cooperage business, persu.'uled him to learn that tr;ide. and he did so. In the me.'inlime the Civil War broke out, and he did not return to Missouri to fol- low school teaching as he had intended. It was here he met his present wife, to whom he was married in the llien village of Kalamazoo. .Afterwards the California fever growing upon Inni iu' SI lid all lie li.ad e.Kcept a lot of land which lie ii.iil >liMiily before purchased in the village for a home, and in December. 1863, lie started with his wife for California by way of New York, and steamer, and arrived in San I-'rancisco in March. 18(^14. He has re- sided there ever since. He had to strike out Uke thousands of other self-made men for any 812 History of the Bench and Bar of California. honorable work in siglit, and he did so and found it in a cooperage establishment, where he earned good wages, taking an interest in public affairs at the same time and studying all his leisure hours. He was offered a place on the police force of that city, which he ac- cepted. He filled this position faithfully, un- til 1869, when he resigned and was elected one of the justices of the peace of San Fran- cisco. He served his term of two years in that office, and studied diligently all the time. He was renominated by acclamation for the second term, and. although running ahead of his ticket, was defeated. In the meantime he passed a creditable examination before the District Court, and the Supreme Court of the State, and was admitted to the bar and practiced con- tinuously and successfully ever since. He has been a general practitioner, has had a large practice and the confidence of his clients and a multitude of friends. He has saved his money Transvaal committee of California, which is composed of different nationalities — Germans, Hollanders, Irish, French and Americans, of which committee he has been president from the start. While he has been extraordinarily active in all of these movements, he never fails to at- tend to his law business. His clients can al- ways find him in his office at nine in the morning— in other words, his days are devoted to his profession, and his nights and leisure moments are freely given to charitable, fra- ternal and patriotic work. One of the latest and most laudable services rendered by him to San Francisco was the establishment of a State Normal School there, which was secured solely through his efforts. Judge Cooney may truly be said to be the father of that school, and the young men and young women of San Francisco and adjoining counties owe to him a debt of gratitude for the advantages thus secured. and has considerable means; he has also raised a large family. He has refused nomination for public office a number of times, preferring to stick to his profession, in which he takes pride. He has participated in many patriotic and charitable movements, organized many socie- ties and has served as president of many of them. He is a man of great executive ability and thoroughly in earnest in anything he un- dertakes. He has presided at more public meetings during the last twenty-five years than probably any other man in the State. He served several terms as chief officer of several fraternal insurance societies, and has paid out much money with entire satisfaction to all. He has never failed to assist in the advancement of the cause of liberty and humanity. Ireland, his native land, has had a share of his time in her struggle for nationality. When the present Boer war came alonp. true to prin- ciple, he took an active interest in that strug- gle, and gave the free use ol his office to the T. E. K. CORMAC. Captain T. E. K. Cormac has been at the bar in San Francisco since the year 1880. A few years after his location in that city he be- came the regular attorney for the British Con- sul there, whose department covers the Pacific Coast, and he has always retained that busi- ness through many changes in the incumbency of the office. The Captain was born in the British Isles, was a cadet in the Naval Academy at Trieste, and served for some years in the -T-UStro-Hunganan army as a lieutenant. He studied law in Boston, Massachusetts, was ad- mitted to the bar in that city, and practiced there for a few years before coming to this State. For four j^ears, 188.V87, he was one of the attorneys for the public administrator at San Francisco, Hon. Philip A. Roach. Since 1890 he has had for a law partner Denis Don- ohoe, Jr., • son of the former British Consul at that city, of the same name. A few years ago Mr. Baum entered the firm, which has since been Cormac, Donohoe & Baum. It does a large business. Captain Cormac's professional career has been one of continuous good fortune. He is a well-equipped lawyer. His pleadings are models of concise and accurate statement. In person he is tall, and finely built, of striking physi- ognomy, and soldierly bearing. He has a ro- bust constitution and enjoys never-failing health. He always dresses well, and in taste. He has traveled a great deal, and takes a trip to Europe every few years. A man of broad culture, and quite engaging in conversation, he is a most agreeable companion, in addition to being a true friend. In art circles he is ac- cepted as a critic of unerring judgment, and pure and correct taste. Captain Cormac owns a fine law and miscel- laneous library, a well-furnished and attractive home in Sausalito, and valual)lc redwood tim- ber lands in Mendocino county. He is a bach- elor, and fifty-five years of age. History of the Bench and Bar of California. 813 W. A. COULTER. Major W. A. Coulter, referee in bankruptcy for the United States District Court, northern district of California, at San Jose, following the example of Chief Justice Marshall, studied law while an officer in the United States army, and was admitted to practice while on staff duty with General Canby at Richmond, Va., on the gth day of August, 1869. He was ap- pointed master in chancery for the Circuit Court of Virginia, and for more than a year was the judge-advocate of the various military commissions organized under the reconstruc- tion laws. He successfully conducted some of the most important trials before these tri- bunals during that period. In the latter part of 1870 he resigned his commission in the army and has ever since been engaged in the active practice of his profession. Fifteen years of this period immediately pre- ceding his removal to California was in the city of Washington, where he was counsel in important cases before the Supreme Court of the District of Columbia, the Supreme Court of the United States, the United States Court of Claims, the department of justice, and the several committees of congress. During this period of professional activity at the national capital, his personal and pro- fessional relations with eminent men of the country, gained for him their confidence and appreciation, and he brought with him to his new field of labor in California letters from President Garfield, Secretary of the Treasury Windom, Justice Stanley Matthews of the Supreme Court of the United States, Senator Blair and Assistant Attorney-General Smith, commending in high terms his attainments and ability as a lawyer. In consequence of the impaired health of his wife, Major Coulter came to California in 1892, and has ever since resided in San Jose. In September, 1898, he was appointed referee in bankruptcy for the United States District Court for the northern district of California. His decisions 'n some of the most important and difficult cases which have been adjudicated under the new bankruptcy law are commended by the brethren of his profession as able and clear expositions of the provisions of that act. Major Coulter is a Pennsylvanian by birth, and an Ohioan by adoption and education. He entered the army from the latter State in Octo- ber, 1861, when a mere boy. He served throughout the Civil War with honor and dis- tinction. His services on the staff of such distinguished Generals as Major-General W. H. Emory and Major-General- E. R. S. Canby elicited from these officers letters of the high- est praise for his accomplishments and achieve- ments as a stafif officer. While on duty with the last-named General, he visited the island of Cuba, and by tact and strategy, secured for the United States government the first and only topographical map of that island ever possessed by our government. The letter of General Humphreys, chief of engineers. United States armv, acknowledging their receipt, says : "Tliese ma'ps are of great value, and supply information that may be of the first import- ance." The training of the soldier is always benefi- cial to the attorney and counsellor-at-law, for, while courage, fidelity to duty, aggressiveness, promptness, vigilance and honor are the char- acteristics of the true soldier, they are quali- ties equally essential in the successful lawyer. T. J. CROWLEY. T. J. Crowley has been a member of the San Francisco bar for the past thirty-three years, having been admitted to the Supreme Court of this State on July 6th, 1868, since which time he has been engaged in active practice, and been counsel in many important causes, both civil and criminal. Like tnost of the pro- fession, his practice is of a general nature, in- volving every branch of the law. He was admitted to the Supreme Court of the United States in October, 1886. He is of Democratic politics, and has been the candidate of his party for Superior Judge of Marin county. His home is in San Rafael. CHARLES W. CROSS. Charles W. Cross was born in Syracuse, New York, May 28, 1848, a clergyman's son. He was educated at the Northwestern Uni- versity at Evanston. Illinois, and was admitted to the bar of the Supreme Court of Illinois at Chicago in 1869. Removing to California he settled at Nevada City, and practiced law in partnership with J. B. Johnson. He repre- sented Nevada and Sierra counties in the Slate senate at the twenty-fifth and twenty-sixth ses- sions, 188,^85, and was chairman of the judi- ciary connnittec for the whole period. He was a member of the last constitutional convention (1S78), being among the delegates from Ne- vada elected on the Workingmen's ticket, which ticket carried that county by 2.048 votes out of a total of 2,378. Mr. Cross removed to San Francisco in March. 1886. He has been associated with a number of well-known attorneys in that city, but is now alone in the practice. His busi- 814 History of the Bench and Bar of Calif or )iia. ness is of large volume, and verj- valuable, mining matters predominating. He is as often seen in some court of the interior as in his home tribunals. There are few lawyers who enjoy such a liberal income as he has been receiving steadily from his practice for the past twenty years. He is a cultured man. of most agreeable presence and address. Mr. Cross is a man of family, having grown sons, and owns, among other valuable posses- sions, a fine home at 19 Baker street. San Francisco. WILLL\M JESSE CURTIS. William Jes.se Curtis is the oldest son of Hon. I. C. Curtis and Lucy M. Curtis. His father was a prominent member of the bar of Marion county, Iowa, for many years, and represented that county in the State legislature for several terms. His mother is the daugh- ter of Jesse L. Holman. one of the early jus- tices of the Supreme Court of the State of Indiana, and a sister of Hon. William S. Hol- man,' who for more than thirty years was a member of congress from that State. Mr. Curtis was born at Aurora. Indiana, on the 2nd day of .\ugust, 1838. In 1844 he moved with his parents to the then Territory of Iowa, and settled in Marion county near the present city of Pella. He was educated at the Central University of Iowa, studied law in his father's office, was admitted to the bar in 1863. and be- came a partner of his father. In 1861 he married Miss Francis S. Cowles. of Delaware, Ohio. In 1864 he crossed the plains with ox and mule teams, came to California and set- tled in the city of San Bernardino, where he has resided ever since. The first five years after his arrival in Cali- fornia, he devoted to teaching school. In January. 1872. he opened a law office in the city of San Bernardino. In 1873 he was elected district attorney of San Bernardino county and was re-elected in 1875. He has been associated at different times in the practice of his profession with Judge H. C. Rolfe, Hon. J. W. Satterwhite, Judge Geo. E. Otis and Judge F. F. Oster, and is now as- sociated with his .son, Jesse W. Curtis. The various firms with which he has been con- nected all occupied prominent positions at the bar of Southern California, and were retained in many important civil cases tried in San Bernardino county and frequently in cases tried in adjoining counties and in the United States Circuit and District Courts. Mr. Curtis has always taken an interest in matters pertaining to the welfare of the city, county and State, and especially in the subject of education. He served for a number of years as president of the city board of education. He is president of the Bar As.sociation of the county and one of the trustees of the law library. C. A. DAUGHERTY. Mr. Daugherty is a native of Ohio, and left for California within a month after gradua- tion from college. He taught school for three years in Ohio and two years in Calif(jrnia. He went to Salinas a total stranger, and what he has accomplished has been by hard work. We had the pleasure of making his acquaint- ance shortly after he located there. He had no relatives or wealthy friends to aid him, l)ut has earned all that he has acquired by strict attention to business and honest dealing witli every one. Mr. Daugherty was admitted to the bar in 1888, and has been engaged in general prac- tice ever since in Monterey and surrounding counties. He is in partnership with Mr. C. F. Lacey. This firm has some of the most im- portant legal business in Monterey county, and only one other firm in that county exceeds it in amount of practice. Mr. Daugherty is now president of the city board of education of Salinas, and chairman of the Republican county central committee. He is also United States commissioner for the United States District Court of the Northern district of California. CHARLES CASSAT DAVIS. Mr. Davis was born at Cincinnati. Ohio, in 1851. He was graduated from Columbia College Law School in 1875, and followed the profession in his native city for ten years. In 1880-81 he was a member of the Ohio legisla- ture. He drafted the law of that state which New York and other states came to adopt, in regard to assessment life insurance companies. Mr. Davis removed from Cincinnati to Los .•\ngeles, Cal., in 1885, and there he has since lived and pursued the law. His practice has principally embraced office and corporation l)usiness. From 1896 to 1900 inclusive, he was a nicml)er of the board of education, and for the last half of the period was president of the board. Early in his service in that body, in concert with Hon. N. P. Conrey. another member, now Superior Judge, he set on foot and led an investigation into .school depart- ment methods, which resulted greatly to the promotion of clean local politics. In 1900 he was a candidate for the Republican nomination for mayor of Los Angeles, and without any active canvass, came within a few votes of receiving the nominal imi. Tlic nominee was defeated at the polls. Mr. Davis is an unmarried man. He stands \-ery high in the estimation of his fellow-citi- zens, and has many >-ears of usefulness before liini ;i^ a ])ul)lic man. HENRY H. DAVIS. hlenry H. Davis was born in Exin. Germany. September 27. i860, and comes of that stalwart stock which has given force and direction to the civilization of the later centuries, .\rriv- ing in New York while his son was yet a child, after a brief stay there, the father settled in San Francisco, California, leaving his family 'o follow him in due time, if he found matters to his liking in that far-off State. .■\fter a vear's residence here, he concluded History of the Bench and Bar of California. 815 to remain, and he proceeded to make a home, to which his family came in 1868. Henry was mimediately sent lo the pubHc schools, and by dint of dili.sent application passed with dis- tinction through all the various classes of the prnn;.rj and grammar grades. Having pre- pared for a collegiate course of study, he was sent to the State University, and took the classical course in that institution, and was graduated witli honors in 1876. Although scarcely out of his teens, l)y un- remitting study and tireless industry, he had ppssessed himself of a liberal education. He irtiproved a year of relaxation by a trip to Europe, visiting his native land, Germany: I^ussia, England and various countries and places of note in the Old World. Returning to California enriched by ol)servation and the ex- periences of extensive travel, he entered on a cour.se of law study at the Hastings College of the Law of the State University. As his natural inclination lay in the direction of his studies, his progress was both rapid and thor- ough, so that on graduating in 1882 he was immediately admitted to practice in the State and Federal courts. Without wealth or family or political influence, he had to rely on his unaided individual exertions to obtain success and standing in his profession. Nevertheless, the energy and native capacity which have always carried him through successfully thus far, still stood him in good stead, and he has gradually worked up to a lucrative practice, his operation being mostly in the Su])erior and Supreme and Federal Courts, and his clients are of the solid and respectable character, which insures safe and substantial remunera- tion He occupies several offices in the build- ing No. 420 California street, San Francisco, and has one of the largest law libraries in the State. He owns an attractive and elegant resi- dence on California street, besides a lot of other valuable real estate in different parts of the city and State, all the result of his own efforts. Mr. Davis is an active member of iiuiiu-rous fraternal and benevolent associations, and as he unites great natural intelligence, genial man- ners and great affability, his counsel and as- sistance are in great request in these organiza- tions. He is a meml)er of King Solomon's Lodge, No. 260, F. and A. ^L ; Past Chan- cellor Commander of Laurel Lodge No. 4, K. of P. ; S. F. Chapter Royal Arch ALasons, and California Council, Royal and Select Mas- ter Masons. He has been three times elected Exalted Ruler of Golden Gate Lodge, No. 6, of the B. and P. Order of Elks ; Past Chief Ran- ger of Court Robin Hood, No. i. Foresters of America ; a member of Cremieux Lodge. No. 325, L O. O. B. ; a member of Division No. 2, Uniform Rank K. of P.; Past Master Workman, A. O. U. W., and a member of the Independent Order of Old Friends. He has been identified with much of the litigation that has arisen in fraternal orders in manj- years past. Of political organizations he is a member of the famous Bear Club, and though always a warm partisan and staunch supporter of his party and its principles, he has never, in ihe sense of being an office-seeker, been a poli- tician. Mr. Davis has maiiy warm friends who rejoice in his success, and who wish him abundant prosperity and happiness in the fu- ture. WILLL\M R. DAVIS. William R. Davis, of Oakland, has lived in California forty-six years of the fifty of his life. He was educated in the public schools and the University of California, afterwards taking up the profession of the law, which he still pursues. Following are some of the steps in his work and career. Ill 1S74 iu' w;iN grailu.ited Iroiii the Univer- sity of California, receiving tiie degree .\. B. In 1875 he was principal teacher in Washing- ton College. In 1876 he began the study f»f law. In 1877 he received the degree of .\. ^i.. from the I'liivcrsity of California. He was admitted to the bar by the Supreme Court of r.ilifornia in 187S, rmd in 1880. to the United 816 History of the Bench and Bar of California. 1 ( States District and United States Circuit Courts, and in 1886, to the bar of the Supreme Court of the United States. In 1880-1. and again in the years 1896-7-8, Mr. Davis was president of the Alumni Asso- ciation, University of California. He was mayor of the city of Oakland for the years 1887-88, being elected by the Republi- can party. In 1890, he was chairman of the Alameda county delegation in the Republican State convention, and chairman of the third district congressional convention. He was president of the national Republican League of Alameda county, and chairman of th*' third district congressional convention in i8q6. Mr. Davis was bom in Iowa, February 26, 1850, but is a Californian through and through, having lived in this State, as shown above, since he was four years of age. During the past twenty-two years he has followed his profession with great diligence, and has had a full measure of success, standing today one of the acknowledged leaders of the bar of the State. For many years his voice has been heard in State and national campaigns, always in support of the Republican party, in whose principles and course in government he is a firm believer. His services in the last presi- dential campaign were everywhere recognized by his party as of the highest value. During his long professional life Mr. Davis has accomplished a vast amount of work. Called at times to Oregon and Nevada in addition to his engagements in the courts of California, he has nevertheless been able to do his full share of work for our univer- sity as one of its distinguished graduates, as president of the Alumni Association and in its financial support: and to strengthen the cause of the political party to which he gives allegiance. He has made in many parts of the State addresses upon educational questions and matters of public concern, including addresses to teachers' institutes, to fraternal organ- izations, at the university, to literary and pro- fessional societies, political discussions, me- morial addresses and orations. The influence of Mr. Davis in public life has been for harmony and construction as against contention and tearing down. It has been re- peatedly said of his course as mayor of Oak- land that the city never had a better admin- istration. During his term the freeholder charter was framed and adopted. At the re- (|uest of the freeholders he made suggestions, nineteen in number, all of which were adopted and which have since proved of high value. Mr. Davis declined renomination. The press of his home city, at the close of his official term, irrespective of party, expressed appro- val of his way of directing public affairs, one journal .saying: "He could have had a second nomination as he received the first, by accla- mation." .\nother : "He has filled the position with intelligence, dignity and application, has acted with a mind single to the best interests of Oakland." .\nothcr. a Democratic journal: "He has made a good mayor and deserves re- endorsement. Our Democracy is not so thick that we cannot speak the truth of him." An- other: "His last message, like all his former communications, is characterized by singular good sense, and a thorough understanding of municipal affairs. He may be congratulated on completing his term without a recognizable mistake, without an act called in question." Of the many important matters which have been placed in his professional hands, Mr. Davis considers perhaps the most important, as it has been the most difficult, the litigation comprising the Oakland water front cases, in which he was employed by the city, and which involved research through a history of over forty years — ordinances, legislation, con- tracts, previous judgments against the city, deeds, ratifications, compromises, tax sales — in all, thirteen independent derivations or chains of title asserted against the city, and also involving principles of State and national con- cern, and well nigh innumerable complex questions of law. Although he was not of the political party then in office, he was unani- mously asked by the city attorney, city coun- cil and mayor to act as counsel for the city in this water-front litigation. The briefs and arguments of Mr. Davis and his associates in these cases are viewed as exhausting the sub- ject of a municipality's rights (as grantee of a State) as to shore-lands and navigable waters. We have tried to be careful in condensing the story of a remarkably active life. Mr. Davis is in now in his prime, and is still in full practice of law at his home in Oakland. He married in 1879. and his family consists of his wife and two sons. GEORGE E. De GOLIA. Mr. DeGolia was born at Placerville (Hang- town), El Dorado county, California, May 3, 1857. He lived the ordinary life of a coun- try boy, and at the age of fourten was ap- pointed a page in the assembly. From his earnings he saved sufficient to enable him to attend the State University. He entered the university at the age of sixteen, and was grad- uated in 1877, being fifth in a class of twenty- six, and being first in the college of civil en- gineering, which course he took there, and also taking a literary course. In 1878 Mr. DeGolia became managing editor of the Oakland Daily Transcript. He was in the newspaper business about a year. When the Hon. Henry Vrooman was elected district attorney in March, 1878, Mr. DeGolia en- tered his office as clerk and student. He was admitted to practice by the Supreme Court, upon examination, in 1879. At the legislative session of 1880 he was secretary of the senate judiciary committee. He practiced law from 1879 until 1883. and was appointed assistant district attorney of Alameda county, which position he held for six years. In 1889 Mr. DeGolia formed a law partnership with Mr. Wooman. and upon the latter's death in that year, succeeded to much of his practice, and to Mr. Vrooman's fine library. He has been engaged in active practice since, and has been W, E. F. Deal History of the Bench and Bar of California. Ml) and is still interested in many larj^e case> in Alameda connt}-. Mr. DeGolia began to lake an interest in politics in 1878. He soon became actively en- gaged on tbe Republican side in Alameda county, and continued st) until 1894. After Mr. Vroonian's death, and until 1894, he was looked upon as the Republican leader in Ala- meda county. He took a prominent part in State matters, going to the national conven- tion of 1888. at Chicago. He has been sec- retary of the Oakland Bar Association since its organization, and is a charter member of the Athenian Club. He is also a prominent member of Oakland Commandery, Knights Templar, as well as the Scottish Rite branch of Masonry, also of the Mystic Shrine. In 1891 he organized a lodge of Elks in Oakland, of which organization he was Exalted Ruler for several years, and represented the order in the Grand Lodge in the East at several annual .sessions. He is a leading member of Piedmont Parlor. Native Sons of the Golden West, and has been a delegate to the Grand Lodge of that order since 1892. Mr. DeGolia was married in 1883 to Caro- line Barroilhet Rabe, daughter of Dr. Rabe, who was a distinguished man in early Cali- fornia history. He has two children, a girl, sixteen, and a boy, fourteen. He is very prom- inent in Oakland society, being one of the leading members of the Oakland Golf Club. Mr. DeGolia has been notable in college ath- letics, football, baseball, swimming, rowing, and has kept it up a good deal to the present time. He is considered the best amatetir with the foils in Oakland. Mr. DeGolia has established quite a reputa tion in Oakland as a corporation attorney and in probate practice, having been attorney for the public aduministrator a number of years, and an authority upon points in probate prac- tice. He has been unusually successful in winning lawsuits. He endeavors to settle lawsuits out of court. rather than in court contests, and has ob- tained the confidence and esteem of the entire community, both as a man and as a lawyer. He considers it a compliment to have it said of him that no lawyer ever asks him for a rvrit- trn stipulation. \V. E. F. DEAL. Mr. Deal is a citizen of the State of Nevada, where he has a large law business, but he has also been practicing at the San F"rancisco bar since the year 189.3, in partnership with Ed- mund Tauszky and George R. Wells (Deal. Tauszky & Wells), lie is an c.-irly-day Cali- fornian. Mr. Deal was born in .Maryland. March 8. 1840. He prepared for college at R. G. Cha- ney's Academy, at Owensville. Md., and New- ton University, Baltimore City, and entered Dickinson college. Pennsylvania, in Se])teniber. 1855. He was graduated from that institu- tion in 1859. with the degree of Bachelor of Arts, and received the degree of Master of Arts from the same college in 1874. .Mr. peal left for California by steamer iruni New York city in August. 1859. arriving al San Francisco. September 12th. His father. Dr. W. Grove Deal, left Baltimore for California a decade prior, and reached San Francisco by way of Panama, in the spring of 1849. He was a Doctor of Medicine as well as a local Meth- odist preacher. Settling in Sacramento in 1849, JJr. Deal practiced medicine, and on Sun- days preached the gospel. The Doctor pur- chased the historic spot. "Sutler's Fort." when cholera broke out. and made of it a cholera hospital, conducting it at his own expense. The elder Deal was also a public speaker of ihe first class. He was a member of the as- sembly al the first session of the legislature. He was an old Whig, and when that party passed out he 'joined the Know-Noihing. or Native American party. In the presidential election of 1856 he took the stump for Fill- more. We heard him then with the most pleas- urable feelings. Baker was the only man who had greater power over a public assemblage. Thomas Fitch had not arrived. Dr. Deal soon afterwards became a Democrat, and remained so in all his after life. In the Civil War he served to the end as a surgeon, and was then honorably discharged. Mr. Deal, the bar leader of Nevada, who is now at the bars of two States, taught school at Oakland. Colusa, and Nevada City. At the latter place, where Superior Judge James V. Coffey was one of his pupils, he was principal of the school until he left for Virginia City. Nevada territory. This was on the 26th of May. 1863. In Virginia City he entered as a clerk the law office of Perley & De Long. He was admitted to the bar of the Nevada Su- preme Court in 1865. but continued in his place as law clerk until Mr. Perley removed to While Pine in 1866. the firm then dissolving. Mr. De Long a few years later Ijecame United Slates minister to Japan. Mr. Deal then served as oflice attornev for llillyer (C. J.) & Whitman (B. C). 'until 1868. when the last named was elected Judge of the Supreme Court. A ])artnership was then formed between Mr. Hillyer and Mr. Deal. which continued from November. 1868. to January. 1869. when William S. Wood entered the firm, which lasted, under the style iif Hill- yer. Wood & Deal, for two years. In 1871-72. Mr. Deal i)r;icliced alone. In 1873 he formed a partnerslii|) with Hon. James 1'. Lewis, who had been Chief Justice of the Siii)reme Court. This association continued uiuil 1884, when Juro tcin. of that body at that session, 1883. and at the extra session of March-May, 1884. His term as senator covered the regular .ses- sion of 1885 and the extra session of 1886. In the assemblv on April 15, 1880. he intro- duced a concurrent resolution for the appoint- ment by the Governor of a connnission to consider the question of dividing the State, to report at the next session. This resolution was referred to the Lf)S Angeles delegation, which seemed to have taken no action ; — it hardly could, as the legislature adjourned sine die the next day. On August 28, 1884. Mr. Del Valle was ora- tor of the day at Monterey at the centennial of Father Serra's death, the old Mission church at Carmcl having just been "restored." In that year be was the Democratic candi- date for congress from the then Sixth Dis- trict, and made a very creditable run against great odds, being defeated by H. H. Markham. At the Democratic State convention which met at Los Angeles on May 15, 1888, Mr. Del Valle out of comnliment both to himself and his city, was unanimously elected temporary chairman, and on the next day was iniani- mously elected permanent president. He was also chairman of the Democratic State conven- tion in 1894, which nominated the successful candidate for Governor, Hon. J. H. Budd, and in 1900, was a delegate to the Democratic na- tional convention which met at Kansas City. When the State went for General Hancock for President in 1880, he was a Presidential elector, and received the largest number of votes cast for any candidate. Mr. Del Valle is now one of the oldest prac- titioners, although only forty-six years of age, at the Los Angeles bar. An observant writer said of Mr. Del Valle in 1889 (which still applies) that "he has a natural modesty that is as striking as it is attractive. Among our many distinguished fellow-citizens, there is no one whose character and ability have en- deared him to a wider circle of friends, no one who is more warmly esteemed or more cordially respected by those who know him." M. C. DUFFICY. M. C. Dufficy was admitted to practice m the Supreme Court of the State of Califor- nia on the 9th of January, 1894. There was a class of forty-five applicants, and Mr. Duf- ficy was the second on the list, and was exam- ined before the full bench. Judges Van R. Paterson and Ralph C. Harrison managing the examination ; at this sitting of the xourt eleven applicants were rejected. Before pre- paring liimself for admission to practice he occupied the position of justice of the peace for San Rafael township. Marin coimty. hav- ing first been appointed to fill a vacancy made by the resignation of George W. IXivis ; and then he was elected to succeed himself in 1800. Judge Dufficv was born ncir the trnvn of Strokestown, county of Roscommon. Ireland. December 2(). i83(). llis parents brought him to the city of New Orleans. La., when he was six years of age. where his father died in 1848. He attended school in New Orleans for six years, or until 1852. when his mother and family came to California via Panama, arriving in San Francisco in December. 1S52. Mr. Dufficy, who was the fourth of a family of seven children, remained in San Fr.Tucisco 826 History of the Bench and Bar of California. until 1854, when he located in Marysville, Cal., and remained there until 1876. He was a merchant, hotel-owner and proprietor, and a large dealer and owner in real estate, etc. I' or a period of eight years he conducted the Western hotel, and the St. Nicholas hotel of that place. He was also proprietor of the Brooklyn hotel, in San Francisco, during the years 1891 and 1892. In 1883 he moved to San Rafael, and conducted the Central hotel until 188O, when he returned to his farm in Yuba county, where he engaged in farming until 1888. Returning to San Rafael to make his home, he purchased residence property, and was engaged in his official duties as above indicated. For the last six years he has prac- ticed his profession as an attorney and coun- sellor-at-law. During the years between 1857 and 1863, while residing at Marysville, Judge Dufficy, then a young man, made the study of law a specialty in the office of Judges L. J. Ashford and Francis L. Hatch. During this time he became acquainted with the late Judge Isaac Sawyer Belcher and his brother, the late William Caldwell Belcher, who were at that time the prominent men of the profession in Marysville, and Mr. Duf- ficy having numerous real estate interests which involved more or less litigation, W. C. Belcher was his confidential attorney. He declares in positive language that the experi- ence and knowledge acquired by being thrown in contact with the honored dead just narned was of very great value to him in after life. Judge Dufficy was joined in marriage February 3, 1863, with Edwina M. O'Brien, a native of Dubuque, Iowa, and daughter of Dr. James O'Brien, formerly county physician of Oroville, Butte county. Mr. and Mrs. Dufficy have nine children, three sons and six daughters. The Judge is a staunch Democrat in politics, still active in political matters, and may always be found allied with the better and more progressive element of his own party. He is a_ gentle- man of culture, and his circle of friends is very large. CHAUNCEY H. DUNN. Chauncey Homer Dunn was born in Laurel, Ohio, on September 25th, 1856. He came to California with his parents in i860, and has since resided here continuously. His father, Rev. Thomas S. Dimn, was for thirty-five years a leading Methodist minister, having filled nearly all the large charges of his church in California at some time during his ministry. Chauncey H. Dunn was educated in the pub- lic schools of California and at the University of the Pacific, near San Jose, graduating from that institution in June, 1878, and receiving the degree of bachelor of arts. He was admitted to practice before the Supreme Court of this State in November, 1882, and has been located at Sacramento city since that time. For eighteen months he worked as one of the asso- ciate editors on the American Decisions, when his practice had increased so that he was unable for want of time, to continue that work longer. He was associated with Hon. J. N. Young, under the firm name of Young & Dunn, for five years ; and has been associated with Judge S. Solon Holl under the firm name of Holl & Dunn, since April, 1891. Mr. Dunn was originally a Republican in politics, but in 1884 he joined the Prohibition party, and was many times its candidate for various offices, among them attorney gen- eral, lieutenant governor, and congressman. Tn 1896, he attended as a delegate the Prohibition national convention and was among those who left the convention and the Prohibition party, because of its attitude in declaring for the single issue of prohibition and refusing to declare its position upon the other leading issues of the day. He believed that no party could ever be successful that was unwilling to take sides upon the important political issues pressing for settlement. In 1898 Mr. Dunn was one of the nominees of the citizens' independent movement for Judge of the Superior Court of Sacramento county. In May, 1900, he was a member of the general conference of the M. E. church that met at Chicago, and which meets but once in four years, and which is the supreme legisla- tive body for that denomination. He has been president of the Young Men's Christian Association of Sacramento for many years. By his studious habits, his known in- tegrity, and his close attention to his profes- sional duties, he has built up a. large and lucra- tive practice, and enjoys the undivided esteem and confidence of the business community. W. H. C. ECKER. Mr. Ecker was born near Allegheny City, Pennsylvania, on May 6th, 1849. When he was about four years of age he, with his parents, settled on a farm, near the city of Gallipolis, in Gallia county. State of Ohio. He received an academic education at the Gallia academy, graduating from that institu- tion in the year 1873. He taught school for a time in Ohio, and West Virginia, and then attended the Cincinnati Law College, grad- uating therefrom in the year 1874. Returning to Gallipolis he engaged in the law practice until 1880, when he was elected to the office of prosecuting attorney for Gallia county, and was re-elected, serving, for six years in that capacity. On account of ill health he moved to Cali- fornia, residing at San Jose for a while, and in 1888 he located permanently in San Diego county. He was admitted to practice in the Supreme Court of the LTnited States at the city of Washington in 1882. His practice now is in both State and federal courts. In 1890 he was elected to the city coimcil of the city of San Diego, which office he now holds. Mr. Ecker is a member of the Masonic or- der, and belongs to Rose Croix Commandery No. 43. of Gallipolis. Ohio. CHARLES P. EELLS. Mr. Eells was born in New York. May 18, 1854. His father was a learned and emi- History of the Bench and Bar of California. 827 nent divine of the Presbyterian Church, the Rev. James Eells, D. D., so well known in California a generation ago. The latter left this State some years before his death, which occurred at Cincinnati, Ohio, March 9, 1886. He was then a professor in Lane Theological Seminary, and in his sixty-fourth year. He left a comfortable estate to his two children, Charles P. Eells and Mrs. Horatio Liver- more. A sketch of his useful life is to be found in Bancroft's "Contemporary Biogra- phy" (1881), and in the editorial columns of the San Francisco Bulletin of March 10, 1886. Charles P. Eells received his education at the old City College in San Francisco, the Oakland College at Oakland, California, the Poughkeepsie Military Academy at Pough- keepsie, New York, and Hamilton College at Clinton, New York. He prepared for the bar in San Francisco ; was admitted to the bar by our State Supreme Court, April 11, 1877, and began practice in 1879 at San Francisco, where he has always since pursued it. He has had much success at the bar, and for the greater part of the time has been in partner- ship with Charles Page and other able men of the metropolis bar. He is a cultured man, and learned and accomplished in his profes- sion. He is tall in stature, strongly built, full of life, and fond of out-door diversions, ram- bles in the country, fishing, hunting, etc.. to which addiction so many hard-working law- yers owe the preservation of sound minds in sound bodies. Mr. Eells was a member of the San Fran- cisco board of education for the years 1899- 1900. MORRIS M. ESTEE. Morris M. Estee, the first United States Judge of the Hawaiian Islands, was born in Warren county, Pennsylvania, November 23, 1833. He was a farmer's son. His education during his minority was obtained at the pub- lic schools of his county, and at Waterford Academy. The last named institution he at- tended for a year. His winters, between his sixteenth and twentieth years, were passed in teaching in his native county. In 1853 he came to California, arriving at San Francisco by way of Panama, in September. He was then twenty years old, and had borrowed of a neigh- bor in Pennsylvania his passage money, upon a promise to pay back double the sum in six months, .\fter vain efforts to get employment in San I'rancisco, he went to the mining re- gion before mentioned, and was enabled from his earnings with the pick to remit to his creditor in Pennsylvania double the sum he had obligated himself to pay, within the time lim- ited. It was in the year iS^c) liiat Mr. Estee was admitted to the bar of the Supreme Court. Me practiced law at Sacramento from that time until the year 1866. During thai period he re- ceived some signal tnkens of iIk- res])ect and confidence of the people. In the legislative session of 1863-64 he represented Sacramento in the assembly. In the fall of 1864 he was elected district attorney, and served the icrm of two years. The emoluments of that office were considerable. Upon leaving it. Mr. Estee removed to San Francisco. Before this change of location, he had invested to some extent in San Francisco business property. The removal to San Francisco was in 1866. After a year's association with ex-Judge E. H. Heacock, Mr. Estee practiced in partner- ship with John R. McLaurin for about three years, when Mr. McLaurin died. Mr. Estee and ex-Judge John H. Boalt then became asso- ciated under the style of Estee & Boalt. This union lasted prosperously for about ten years. Shortly after its dissolution, Mr. Ramon E. Wilson joined Mr. Estee, and some years later Mr. E. J. McCutchen entered the 'firm, the style of which was Estee, Wilson & Mc- Cutchen down to 1892. 1 hen for some three years Mr. John H. Miller was Mr. Estee's associate. After that Mr. Estee practiced alone. Mr. Estee is a Republican in politics, and as such was elected to the public places he held in Sacramento. He became even more promi- nent in the councils of his party after he re- moved to San Francisco. When Newton Booth was nominated by the Republicans for Governor in 1871. and entered upon his bril- liant and successful canvass for that office against the incumbent, Hon. Henry H. Haight. Mr. Estee was made secretary of the Repub- lican State Central Committee. For the zeal and ability he displayed in that position, his party showered upon him its applause. But two years later there was a serious division in his party ranks ; and in the general election (which was for members of the legislature and county officers), Mr. Estee and Hon. John Swift were among the Republican leaders who followed Governor Booth into what some would call a revolt against the regular organ- ization, while others would declare it a revolu- tion. These gentlemen led an independent movement, which carried the legislature, and elected Governor Booth to the United States senate. Mr. Estee led the San Francisco dele- gation in the assembly, and was made speaker of that body. In that position his urbanity, ability, and decision were constantly displayed. The Independent party dis.solved within a year into its original elements, and Messrs, Booth. Swift and Estee were soon in full Rc- I)ublican fellowshin again. At the legislative session of 'i't^J'-j't^. Mr. Estee was the Repub- lican caucus nominee for I'niled States senator, but the Democrats were in the majority and elected James T. Farley. Mr. Estee was a leading member fif the Inst constitutional convention of this State ([878). 1 h' was elected as a non-partisan from the .State-at-large. He was made chairman of the committee on corporations of the conven- tion, and prepared the report of this com- mit he on the important work by it accom- plished. It is noteworthy tlial he was the only one of the eight delegates from the .San Fran- cisco district representing the State-at-large. who supported before the people the new con- stitution adopted in 1879. 828 History of the Bench and Bar of California. Ill tlic year 1880 Mr. Estee was elected one of the freeholders entrusted by the people with the task of framing a new charter for San Francisco, his legal residence being in that city at that time. The instrument framed by this charter convention was rejected by the people. Mr. Estee was the Republican candidate for Governor of California in 1882, but the Demo- crats, under the lead of General Stoneman, were successful in that campaign. He was the candidate again of his party for that office in 1894. when the Democrats elected Hon. James H. Budd. '1 nc most distinguished place, perhaps, tliat Mr. Estee has ever held, in that it attracted to him and to his State the eyes of the whole country, was that of President of the National Rcpul)]'ican Convention of 1888. His latest public trust was as a delegate to the Congress of Nations of North, Central and South Amer- ica, which opened at Washington, D. C, on the 4th of October, 1889. Mr. Estee is a prominent Mason and Odd Fellow, and was a representative in the Su- preme Lodge, I. O. O. F.. that sat at Balti- more in 1869. He married in February, 1863, Miss Frances Divine, daughter of Judge Davis Divine, of San Jose, and has two daughters. Mr. Estee is of striking personal appear- ance, above the average height and weight, and of most agreeable address and presence. As a public speaker and at the bar he is en- tertaining, and convincing, always dignified, and leaving the impression of sincerity. Be- sides his forensic efforts, he has delivered sonie of the ablest addresses ever heard at our agri- cultural fairs and at Fourth of July celebra- tions. He has the ability to weigh evidence — not in law suits merely, but in matters that divide men generally — to separate facts from fiction, to get at the truth, and support the bet- ter cause. After a long period of uninterru])ted success at the bar, and distinction in public life and politics, Mr. Estee was just at the zenith of his powers of mind, when President McKinley appointed him the first United States Judge of the Hawaiian Islands, in June, 1900. The title of Justice Estec's office is that of "United States District Judge for the Territory of Hawaii." Under the act of annexation, the Hawaiian Islands were formed into a district to be known as the District of Hawaii, and to be attached to the Ninth Judicial Circuit. The functions of the District Judge there are the same as those of the district judges in this country, except that he is given the same powers in appeal as are held by the circuit judges. In addition to the ordinary powers of the district judge, therefore, the district judge of Hawaii is empowered to perform the duties of a circuit judge over that district. Sessions of the court of the District of Ha- waii are held in Honolulu in October and in Hilo in January of each year. Judge Estee's nomination was sent by the President to the senate on June 2, 1900, and was promptly confirmed. He sailed from San Francisco for Honolulu early in August, 1900. and oi)eiied the new court there in the same munlh. lie wa.-5 ban(iueted by a numerous body of leading citizens of San Francisco just before his departure. At Honolulu he was welcomed most cordially by the whole bar. His duties bring him to San Francisco twice a year to attend the United States Circuit Court of Appeals. OLIVER P. EVANS. Oliver Perry Evans, one of the judges of the Superior Court of San Francisco, chosen at the first election under the present consti- tution, was born in the State of Virginia, and is now fifty-eight years of age. He was lib- erally educated, and began his professional career in San Francisco in 1868. He was in partnership with ex-Chief Justice John Currey for a period of eight years, ending on the first of January, 1878. Judge Currey, who then retired from active practice, speaks of this long association with much satisfaction. Judge Evans was elected a judge of the Su- perior Court in the fall of 1879, and took the bench in January, 1880. In August, 1883, having served three and a half years, he re- signed, and resumed law practice. He then entered on a valuable business of a general character. His connection with the Sharon divorce case is mentioned in the article on that litigation in this History. He has been associated since 1898 with John H. Mere- dith, who is also a Virginian, and a lawyer of subtle and sagacious mind. Judge Evans is a man of family. Person- ally, he is of giant frame and harmoniously built, now. apparently, more than ever, in the flower of manly health, and is of striking pres- ence. CLARA SHORTRIDGE FOLTZ. Clara Shortridge Foltz is the only daughter of Elias W. Snortridge. who was a minister of the Christian, or Campbelite, Church. She springs from an old American family, and was born in Henry county, Indiana. Her family has always been noted for mental and physical vigor and uncompromising virtue. Her father acquired distinction as an orator. His four sons, widely separated by circumstances, are leading men in the communities in which they live. Mrs. Foltz went to school only three years — from eleven to fourteen years of age — at Howe's Seminary, Mount Pleasant, Iowa. At the age of sixteen she figured in a Gretna Green match, uniting her fortunes with a young Penn.sylvania German. Her husband removing to Portland, Oregon, she rejoined him there in January, 1872, with a ibabe of nine weeks. Not long afterwards they removed to San Francisco. Mr. G. W. Lamson, still practicing at Port- land, who had come to know her well, and had been struck with her strong intellect, her ready wit, and her facility of speech, visited her one day, and presenting the complete com- mentaries of Kent, said : "I wish yoii would take these books and read them; I think you would make a good lawyer." Clara Shortridge Foliz History of the Bench and Bar of California. 831 She took the books and commenced her life work. She did most of her law reading in the law office of C. C« Stephens, of San Jose, California. She was admitted to practice in the Twentieth District Court at San Jose, Sep- tember 5, 1878, after passing an examination by Judge F. E. Spencer and Messrs. Stephens and Harrington. She obtained some profes- sional business very soon, but, before trying to establish a practice, removed to San Fran- cisco for the purpose of further pursuing her studies in the Hastings Law College. She here found herself at once confronted with obstacles of a serious character, which put to a severe test all her pluck, fortitude and ability. Applying to Judge Hastings, the founder and dean of the college, for permis- sion to attend the lectures, she was told she could do so, subject to the decision of the di- rectors. After attending three lectures she received a notice from the registrar that the ■'Directors had resolved not to admit women to the Law School." At the session of 1878 the legislature had amended the section of the code of civil pro- cedure regulating the admission of attorneys and counselors in all the courts of the state. The section originally read : "Any white male citizen," etc. ; as amended it read : "Any citi- zen or person," etc. This amendment was drafted by Mrs. Foltz, who visited the cap- itol, and watched its fate with maternal so- licitude. Senator Murphy, of Santa Clara, in- troduced it in the upper house, which it passed by a fair majority. Mrs. Foltz was then called to Oregon to address the State Woman Suffrage Association. In the assembly her measure was strongly opposed by Mr. Mur- phy of Del Norte, and was defeated. Mr. Grove L. Johnson of Sacramento moved a re- consideration, and meanwhile Mrs. Foltz was again on the battlefield. After much argument and personal entreaty, she had the pleasure of seeing the section as amended pass the assem- bly, on reconsideration, by one majority. Tn her enthusiasm and anxiety, she invaded the room of Governor Irwin, and urged him to yield his signature. She was gently checked with the assurance of his excellency that, "when the bill reached him he would examine and consider it." It received the executive signature two minutes before midnight, the hour of final adjournment of the legislature, and was the last bill signed. In January, 1879, Mrs. Foltz presented to the Fourth District Court her certificate' of admission to the bar of the Twentietli dis- trict, and asked for a license from the first- named tribunal. Judge Morrison, presiding, denied the application, and appointed a com- mittee (W. W. Cope, J. B. Lamar, and Sidney V. Smith) to examine Mrs. Foltz as to her qualifications. The report of the committee was favorable, and the applicant was then duly admitted. Now for college. Strengthened by her Fourth district license, the struggling woman now paid immediate attention to the little note from the registrar of Hastings Law .School which she had received some three weeks before. Judge Hastings himself, Professor Pomeroy and the directors were of one mind, that she had no legal right to admission to the institution, and that it would be unwise to receive her, her presence, in their judgment, being calculated to distract the attention of the male students. Mrs. Foltz applied to the Fourth District Court for an alternative writ of mandate to compel the directors to admit her as a student in the college. She made a well-considered argument in support of her application, basing her claim upon the fact that the law college was a branch of the State University, and that the right of women to enter the uiversity was unquestioned, several having graduated therefrom. She declared that it would be an anomaly in legislation to permit women to practice law in all .the courts and yet establish a law school from which they should be excluded. Two leading members of the bar replied to Mrs. Foltz, but the decision was in her fa- vor. The directors appealed, and she was kept out of the college for a year. In the mean- time, she appeared before the Supreme Court as an applicant for admission to the bar of that tribunal, and, after a public examina- tion, the third passed by her, she was admitted. She was one of a large class of applicants, many of whom were rejected. A few weeks later she argued in the Supreme Court her mandamus case on appeal. She was compli- mented from the bench, and when the court adjourned one of the Judges, who had known Iier in San Jose, honored her with the words, "You are not only a good mother ; you are a good lawyer. 1 have never heard a better ar- pument, for a first argument, made by any one." By the final judgment of the appellate court (Foltz vs. Hogc, 54 Cal., 28) the doors of the Hastings Law College were thrown wide open to woman, and Mrs. Foltz, at the close of a brilliant campaign, took her coveted seat. Before her contest in the State courts, Mrs. Foltz had created quite a flutter in San Jose, among the legal juniors. They had a lively moot court, called the Legal Club. The lady sought membership in it, and at once the club was divided against itself, and soon went to splinters. Mrs. Foltz was clerk of the judiciary com- mittee of the assembly in 1880. With the exception of the period covered by that ses- s'on, and about three years at the New York City bar (i8q6-r)8) she has been practicing law in San Francisco since her admission. The most noted case with which slie has been con- nected was that of Wheeler, indicted for nnud.r, and convicted. She appeared for the prosecution, and addressed the jury. She has liad no law partner. I'Vecpiently she is called to the interior on business. For her chosen profession she has the most enthusiastic de- votion. In court she is self-reliant, her argu- ment is terse and condensed, her speech fluent. Having a good voice, engaging manners, and dressing with excellent taste, disiil.iying con- stant evidence of strict ami circfiil p.Troutal 832 History of the Bench and Bar of California. training, and wearing always the jewel of true womanhood, she has become a favorite of the bar. whose leading members are pleased at all times to give her counsel. By her womanly graces, as well as by her studious habits and patient struggles, she has won the undivided esteem of the entire pro- fession. They have got through laughing at her. She can defend herself. She anticipated frequent occasion to do so when she com- menced going into court. But she has rarely met frowns or sneers. She is overflowing with life and humor and is quick at repartee. An opposing attorney once suggested to her in open court that she had better be at home raising her cliildren. She replied : "A woman had better be in almost any business than raising such men as you." Madge Morris once wrote to her in sweet verse : "If faltered ere that heart of thine, It ached, but gave the world no sign." And again, in the same poem : "Thy voice hath argued in debate. In scathing satire, sharply fell ; In forum, and in hall of state. Held listening thousands with its .spell ; Then dropped its tones to softest keep. And crooning sang a babe to sleep." Closing with lines since often quoted in newspapers and magazines : "And thou hast proved that woman can, Who has the nerve and strength and will, Work in the wider fields of man. And be a woman .still." Dr. Charles Gridley Toland, of San Fran- cisco, and Miss Trella. daughter of Mrs. Foltz, were united in marriage at San Diego, California, in October. 1^88. E. A. FORBES. Edwin Alexander Forbes was born July 20, i860, at the mining town of Brandy City, Sierra county, California. His parents were foreign born. His father, Alexander R. Forbes, came from Scotland, and was raised in Canada. He was a blacksmith and a miner until 1867, when he moved to Yuba county, in this State, and engaged in farming and stock-raising un- til his death in 1897. The mother, whose maiden name was Catherine Kraker, was born in (jermany. and came to this coimtry at twelve years of age. She was educated in the schools of the United States. The ancestors on the father's side were soldiers for many genera- tions among the Highland regiments of the British army — chiefly the Gordon Highlanders, wherein the grandfather served twenty-one years, taking part in many memorable battles, among them Waterloo. At the age of seven years E. A. Forbes moved with his parents from the old mining camp of Brandy City to the Oregon House Valley, in Yul)a county, where his father pur- chased a ranch, and from then until he was eighteen years of age. he worked on the farm and in the blacksmith shop. He rode the ranges after stock, and attended the public schools during the i)ortions of the year when ihcy were open. As soon as his age would permit under the law, to-wit, eighteen years, he attended the teachers' •examination and ob- tained a first-grade certificate to teach school, standing second in a class of twenty-four ap- plicants. He then taught for three years in Yuba county. On arriving at majority, with his savings he entered the law department of the State University. By teaching school dur- ing vacation, and, when he could not get a school, by working in the harvest fields, and by clerking in a law office in San Francisco, he managed to stay through his term, and was graduated from Hastings Law College in May, 1884. He then went to Marysville. California, and opened a law office in June. 1884. He re- ceived the nomination for district attorney of Yuba county .in July, and was elected in No- vember of the same year. He held the office of district atotrney of Yuba county for four terms, until 1892. Entering into partnership with Wallace Dinsmore, his present partner, in 1885, they have practiced law in Marys- ville ever since, the firm name being Forbes & Dinsniure. They do a large corporation, probate and criminal practice. Mr. Forbes has i)een engaged in most of the noted criminal cases in Northern California for many years. He has always taken a prominent part in mil- itary affairs, belonging to the National Guard since 1880, and now ])eing lieutenant-colonel of the Second Infantry Regiment, N. G. C. He served during the railroad strikes of 1894, and voluntered during the Spanish-American War, and was commissioned as major of the Eighth California Regiment of Infantry, United States Vohmteers. He is one of the crack shots of the National Guard, and when captain of the Marysville company in 1895, broke the world's record at target shooting with fifty men. Dur- ing the Spanish-American War his regiment was not called out of the country, but owing to his administrative military ability he was given more important military commands than any volunter officer on the Pacific Coast, hav- ing been sent to command the important post Wm. H. Fifield History of the Bench and Bar of California. 835 of Vancouver Barracks, where he was in com- mand of the First Battalion of his own regi- ment and the troops of Oregon and Washing- ton, and a detachment of Regulars. He was also in command of the troops at Angel Isl- and and Benicia, California. Colonel Forbes has also always taken a leading part in politics. He was chairman of the Republican State convention at Sacra- mento in 1900, and appointed the executive committee of the Republican party whicli so successfully handled the Presidential campaign of that year. He was defeated for the nomi- nation for congress from the Second district of California, by one vote, at Santa Cruz, in 1900. The Lolonel takes great interest as well in public affairs. He formed the Brown's Valley Irrigation district, and brought the wa- ters of the Yuba River over the dry foot- hills of Yuba county. He negotiated the sale of the famous Brown's Valley mines, and was active in interesting capital in the develop- ment of the wonderful power resources on the Yuba River, which resulted eventuallj'^ in the creation of the greatest electrical plant in Cali- fornia, the Bay Counties Power Company's plant. Colonel Forbes is president of the board of agricultural directors of his district; president of the Marysville Chamber of Commerce, and vice-president of the Sacramento Valley De- velopment Association, besides being president of several private corporations. He ranks as one of the leaders of the bar of Northern Cal- ifornia. His success in legal, civil, political and military life comes from his intimate knowledge of men and the use of practical judgment in all matters, aided by a tenacious determination to carry out whatever he under- takes. He was married in November, 1884, to Miss Jennie Yore, by whom he has two children, a daughter of fifteen, and a boy of eight years. WILLIAM H. FIFIELD. William Henry Fifield, so long prominent at the San Francisco bar, and always associated with men of the first ability, was born Feb- ruary 8, 1843, in Jackson county, Michigan. Both of his parents were born in New Hamp- shire. He received his early training and prep- aration for college in the public schools of his- native place. He entered the University of Michigan at Ann Arbor in the fall of 1861, and was graduated with his class in 1865, re- ceiving the degree of Bachelor of Arts. Immediately upon his graduation he entered upon the study of the law in the summer of 1865. in the office of Hon. Austin Blair at Jack- son, Michigan, who was the war Governor of that state, and a distinguished nieniber of its bar. In the fall of that year Mr. l-'ifield returned to the university and attended the law school during the session. He returned hdine in the spring of 1866, and continued liis legal studies with Governor Blair until December. 1866, when, upon examination, he was admitted to practice in all the courts of the state, and in the Federal courts at Detroit. He continued with Governor Blair until Au- gust, 1868, when he started for California, by way of Panama. He arrived in San Fran- cisco on September 25, 1868, and on October I, 1868, opened an office in that city, where he has practiced his profession continuously ever since, a portion of the time in partnership with others, and the balance of the time alone. At present he is a partner of James Thomas Boyd, under the firm name of Bovd & Fi- field. Mr. Fifield has never held any public office, but during the years 1898 and 1899 'le was president of the San Francisco Bar Associa- tion. He is one of the most gifted and in- dustrious men at the bar of the State, and has manv fine social qualities. JOHN F. FINN. John F. Finn was born on the island of Cuba, in 1839. We have known him, in Cali- fornia and Nevada, for about forty years. He settled at San Francisco about the year 1864. In 1867-68 he was the attorney for the public administrator, William A. Quarles, and later for public administrator Simon Mayer. He was defeated on the Republican ticket for justice of the peace in 1869. At the first elec- tion under the present constitution, in 1879. he was chosen, as a Republican, one of the twelve Judges of the new Superior Court, and drew a one-year term, which he served. The proceedings in the great Blythe estate, and those in the Sharon divorce case were begun before him, but were .soon transferred to other departments. The Jud.ge was elected his own successor for a full term of six years in the fall of 1880, and again for a full term in the fall of 1886. In January. 1893. after thirteen years on that bencli, he voluntarily retired. At the .same time Judge Finn retired from the profession of law. He was always a provi- dent man. of excellent life, and is in the enjoy- ment of a fortune. He has a wife, but no issue. He and Mrs. Finn spend the greater part of their time in travel. A letter which we re- ceived from him recently shows that they arc passing the winter of 1900-1901 in the south of France. L. H. l-OOTF. General Lucius H. Foote. whn h.is had such a long public career, marked by uninterrupted good fortune, was a practicing l.iwyer at the capital cil3' in the fifties, and in San Fran- ci.sco a generation later. The General is one of the men of our bar to whom we have sev- eral limes referred, who were born in the year 1826. The month and day were .April 10. and the i)lace Winfield. Herkimer county. New York. He was educated at Knox College, Illinois, and at Western Reserve College. Ohio. He came to California in 1853. and Incated at Sacramento where he was admitted to the bar in 1856. He immediately entered uixm his pro- tracted pui)lic service. He was Justice of the Peace in the city named, in 1856-57-38; Po- lice Judge in 1859-60; collector of the Port of Sacramento. ai)pi)iiiie(l by President Lincobi, 836 History of the Bench and Bar of California. in 1862-63-64; State adjutant-general, under his warm personal triend. Governor Newton Booth, in 1872-73-74-75, and a delegate to the Republican National convention which nomi- nated Hayes and Wheeler, in 1876. In the latter year General Foole removed to San Francisco. He was appointed by Presi- dent Hayes United States Consul to Valpa- raiso, Chile, and served as such for four years — 1877-1880. President Garfield appointed him United States Minister to Corea, which posi- tion he held for the years 1881-82-83. He then returned to San Francisco. In 1891 he became secretary of the California Academy of Sciences, of that city, and treasurer of that great and (thanks to the munifiicence of James Lick) flourishing institution. The (k-ncral, who is a man of culture and distinguished presence, possesses literary abil- ity of a high order. He has been writing for forty years in prose and verse, to the delight of the world of letters. In life's evening he is still sunny-tempered, as we remarked of Holla- day. He is well off. "'I'he sea, the sky, the landscape, all belong To him who lifts on high his heart in song." HENRY L. FORD. Henry L. Ford was born May 15th, i860, at Noyo, Mendocino county, California. Hi,s father was Captain Henry L. Ford who came to California in 1842. Captain Ford took a prominent part in the Bear Flag rebellion, and designed the bear that was painted on the Hag that was raised in Sonoma county in 1846. He was also commander of one of the com- panies in that rebellion. Captain Ford was accidentally killed while his son was a small child. The widow then married Archibald P. Osborn, a veteran of the Mexican War. Mr. Osborn moved to Humbolt county in 1864. and was one of the pioneers of that county. He served as first sergeant in Company A. Cali- fornia Volunteers, and held numerous town- ship and county offices. His death occurred in 1894. Mr. Ford conceived the idea of being a law- yer when he was about eighteen years of age. From his own earnings he purchased his law books with which to begin study. As to what books to read he was advised by Hon. J. J. DeHaven, the present United States District Judge. In January, 1887, he located at Eureka, and entered the law office of Hon. E. W. W^il- son, who is now presiding Judge in Department Two of the Superior Court of Humboldt county. It is to the kindness of Judge Wil- son that he owes much of the success he at- tained in after years. In April of that year he was admitted to practice in the courts of this State. From that time he advanced rapidly into prominence and is now one of the leading lawyers of Northern California. Mr. Ford expresses it as his opinion that Humboldt county has the brightest, best and kindest as- semblage of lawyers in the State ; that both judges and lawyers treat each other as if they were all members of one fraternal organiza- tion, having for its aim and end the prosperity and happiness of its members. On May ist. 1889, Mr. Ford was joined in marriage with Miss Nellie Woodlee, a daugh- ter of Henderson Woodlee, a pioneer of Hum- boldt county. In July, 1897, Judge De Haven, of the United States District Court appointed him United States commissioner, which office he still holds. He has a large practice in the courts of three counties. It is claimed for him that he has the- largest practice in Humboldt. He owns an extensive and costly and well- selected law library. TIREY L. FORD. Tirey L. Ford was born in Monroe county. Missouri, December 29, 1857. He was raised on a small farm, attending the di.strict school in winter and laboring on the farm in sum- mer. By working mornings, evenings and Saturdays, he managed to attend the high school at the county seat of his county, from which he was graduated in June, 1876. He came to California in February. 1877. and worked as a farm hand on different ranches in Colusa and Butte counties until January, 1880, when, having laid by a few- hundred dollars, he entered the office of Park Henshaw in Chico. where he studied law. In August. 1892. he was admitted to practice by the Su- l)reme Court of this State. General Ford began the practice of law in Oroville, but removed to Downieville, Sierra county, in January. 1885, where he soon built up a splendid practice. In 1888 he was elected district attorney of Sierra county and was re- elected in 1890. In 1892 he was elected State senator, repre- senting the counties of Plumas, Sierra and Nevada at the sessions of 1893 and 1895. In April, 1895, he was employed by the board of state harbor commissioners at San Francisco to attend to their legal matters. He continued to act as the attorney for the board until elected attorney-general. This was at the general election in November, 1898. As State senator. General Ford secured a considerable amount of legislation which was desire 1 by the miners, and became quite inti- mately identified with mining interests in gen- History of the Bench and Bar of California. s;i7 eral. As ,attorney for the board of state har- bor commissioners he was exceptionally fortu- nate in having his opinions upheld by the courts wherever the same became the sub- ject of judicial investigation. He also re- covered for the State a strip of land on Chan- nel street on the water front in San Francisco, which had been occupied by the Southern Pa- cinc Company for some twenty-five years, and which had been the subject of legal investi- gation by his predecessors, but concerning which nothing definite had been done until he finally brought the matter to a successful conclusion in the courts. What our subject has done as attorney-gen- eral is too recent to need recapitulation here. His opinions have been almost uniformly up- held by the courts and rarely has he lost a contested case. In one instance he saved the State something like a quarter of a million of dollars. Before he took his present ofiice the Supreme Court, through one of its de- partments, had decided against the State in the matter of the Stanford inheritance tax. General Ford secured a re-hearing and argued the matter before the court in banc. The court finally rendered its decision in favor of the State, which involved the payment by the Stanford estate of about a quarter of a mil- lion of dollars into the State treasury. The suit which he recently brought for the board of railroad commissioners against the Southern Pacific Company to compel that company to restore its lowered rates between San Francisco and Fresno and other San Joaquin valley points, resulted in a judgment against the railroad companv. The case was on appeal to the Sui)rcme Court at the time of this publication. In April, iqoo. (leneral I'ord had occasion to go to Wasliington. D. C. to argue a rail- road tax case before the United States Su- I)reme Court. The case involved taxes due l)v the Santa Fe Railroad Companv to the State of California. The Sui)reme Court de- cided the case in favor of the State and against the railroad company, thus enabling the Gen- eral to .score a victory of which he has just can-e to feel proud. General Ford is extremely modest in di>- cussing his unusual success in professional and political life. His friends, however, do not hesitate to give him full credit for the energy and ability upon which his success has been bnilt. JOIIX E. FOCI.DS 1 his well-known figure is seen almost every day in the law-world of our chief city, in the beaten track of toilsome achievement. He has been quietly trying cases for the great rail- road companies for more than twenty years. For a considerable period he was employed in the lower courts, but redeemed the time, and gradually pressed into conspicuous place, until now his printed arguments are thick among the files of the Supreme Court. We well re- call occasions, in the late '70s. when we saw him before justices of the peace, passing his novitiate in unobtrusive yet ambitious cflFort. He has literally worked his way up the height. Mr. Foulds began his business life as a phonographcr. He came to San Franci.sco in 1871, with a view to following that avoca- tion. He- soon seciu-ed a position in the offices of the old Southern Pacific and Central Pa- cific Railroad Companies as shorthand writer and clerk. This position he retained for some years after his admission to practice law. After a full course of reading he was admitted to the bar of the State Supreme Court in 1876. His transition to the more trustful relation of attorney was not sudden nor experimental. He handled small cases in court while yet nominally a law clerk. It was in 1879 that he became one of the regular attorneys of the Ceiural Pacific. In 1881 the Southern Pacific Railroad Company was also his client, and when, in 1885, or thereabouts, the South- ern Pacific Company was formed, leasing the lines of the Southern Pacific Railroad, the Central Pacific Railroad, and other railroads, Mr. Foulds became one of the regular attor- neys of the later corporation. In 1888 he turned to practice on his own account, and in the next year became associated with Car- roll Cook, now Superior Judge, tmder the style of Carroll Cook and J. V.. ImiuUIs. After two years this i)artnershi|) w;is dissolved, and Mr. iMiidds returned to his old place in the law department of the Southern Pacific Com- pany, which he still holds. Mr. Foulds' latest case ou behalf of the railroad company was the important and inter- esting one of the Board of Railroad Com- missioners against the Southern Pacific Rail- road Comp.'iny. ;ind the Southern P.icifie Com- pany, in which the defendaiUs were charged with violation of the State constitution in re- ilucing an established rale for the puri)ose of meeting eonii)etition, and thereafter raising the same without the consent of the Railroad Connnissioners. On the appeal by the de- fendants, their cause was presented by Mr. ImiuUIs and John (iarber. Mr. Foulds making the opening argument, and Judge (larber clos- ing — September, 1900. Mr. Foulds is a native of Fnglaii■ lu re. on ;lu- 141b day of I'ebruary, 1879. lu' enteri'd liie l.iw office of Hon. George G. l'.lancharreparations for the bar in the office of Hon. Paul Ncmnann .ind Henry Fickhoff. al the s.inie lime at- lendiii.t; all ihe lectiu-es .it Hastings* College 850 History of the Dencli and Bar of California. of the Law. He was admitted to the bar by the State Supreme Court, at San Francisco, on August 9, 1882, and on the 14th opened an office in Placerville. In May, 1884, he lo- cated in San Francisco, and has ever since practiced law there. He is also a notary public and conveyancer. Being of a literary turn, Mr. Goldner has for years devoted his leisure moments to story writing, and occa- sionally contributes special articles to the press. P. F. GOSBEY. P. F. Gosbey was born in the town of Santa Clara, county of Santa Clara, State of Cali- fornia, on May 15. i859- He attended the public schools of his native place and gradu- , ated from the high school in 1875. In the fall of the same year he entered the University of the Pacific, completed the classical course and graduated with the degree of A. B. in 1880. The summer and fall of this year were spent in the harvest field to enable him to raise funds to cancel some of the debts incurred to meet the expenses of his last year in college. In the spring of 1881 Mr. Gosbey took the county examinations of the board of education of Santa Clara county and succeeded in getting a teacher's certificate. In the summer of '81 Mr. Gosbey was chosen to teach a small school in Mount Pleasant district in Santa Clara county. In June, 1882, he was elected principal of the public school at Alviso. In October of the He returned to San Jose and began his work as a lawyer, and is still located there. Mr. Gosbey has been prominent in the Masonic Order, and the Independent Order of Odd Fellows, having been grand master of the State of the latter organization. He is a mem- ber of the legal fraternity of Phi Delta Phi. WALKER C. GRAVES. Walker Coleman Graves was born in Fay- ette county, Kentucky, on the lOth of June, 1849. He is the son of Coleman and Virginia .ji-j»*^rjr<^'it»s same year he was elected by the board of edu- cation of the city of San Jose to the chair of mathematics in the San Jose high school. This position he held until June, 1886, when he resigned, being at the time vice-principal^ of the high school. Taking with him the savings of his work as school teacher, he entered the law department of the University of Michigan at .'Knn Arbor in 1886, and graduated therefrom in 1888 witli the degree of LL. B. Mr._ Gosbey was elected by his class as its historian. In the fall of this year he was admitted to prac- tice law in this State by the Supreme Court. Graves. His father was a successful farmer and a man of some learning and culture, and he gave his son the opportunities of a good education. Mr. Graves attended the University of Ken- tucky, taking the entire course, graduating in Latin, Greek, French and German ; and but for his failure to stand the required exam- ination in conic sections (which was due to his sickness) he would have received the de- gree of master of arts. He took the degree of master of commerce and is a graduate of the law department of the university named. He was admitted to practice in all the courts of Kentucky and entered the law office of James B. Beck, afterwards United States sen- ator, at Lexington. Mr. Graves came to California in 1878, and located at San Francisco. He has since been engaged in the practice of his profession. In 1882 he was married to Maude, only child of Jefferson G. James, a California pioneer, and is the father of three boys, whose names are. Jefferson James, Walker Coleman, and Rector Chiles. . In 1888 he was appointed special assistant district attorney, and as such, he had charge of many important cases involving jury brib- ery, embezzlement of public funds, violation of election laws. etc. In nearly all of these he secured convictions. In many instances the defendants were men of wealth and of strong social and political influence, and they were Wm D. Gould History of the Bench and Bar of California. 853 defended by the ablest criminal lawyers in the State. Of the numerous appeals in cases tried by him, he was successful in all except one, and the reversal in that case was secured on purely jurisdictional grounds. In 1890 ^Ir. Graves was nominated for the office of attorney-general by the Democratic party but went down in the general cataclysm that overtook his party in that year. Since leaving the district attorney's c-ffice Mr. Graves has confined himself almost en- tirely to civil cases. He has been connei'ted with some of the most important land and water suits in the State. He is past worshipful master of Pacific Lodge, No. 136, of Free and Accepted Ma- sons, and is past grand chancellor of the order of Knights of Pythias. He is present su- preme representative of the last named order, and has served a term in the grand tribunal. WILL D. GOULD. Will Daniel Gould was born September 17. 1845, in Cabot, Vermont. He attended the common and high schools of his native town, the academy at St. Johnsbury and Barre, and was elected and served as superintendent of schools in Cabot the year he attained his ma- jority. He was principal of the graded schools at Marshfield, Passumpsic and Plainfield. In 1871 he was graduated from the University of Michigan, and was immediately admitted to the bar at Montpelier, Vermont. The follow- ing year he removed to Los Angeles, Califor- nia, where he has since been successfully en- gaged in the active practice of his profession. J. A. GRAVES. J. A. Graves was born in the state of Iowa, December 5, 1852, his parents being natives of Kentucky. He came to California in 1857, when barely five years of age. He lived his early life on a ranch near Marysville, in Yuba county, and later in San Mateo county, and attended the San Franci.sco High School. He then went to St. Mary's College, San Fran- cisco, and graduated there as an A. M. in He then began 'lie study of law in the office of Eastman & Neumami, in San Francisco. He removed to Los Angeles in 1875, entering the office of Brunson & Eastman as a clerk and student. Jn January, 1876, he was admitted to practice by the Supreme Court of the State, and immediately became a partner of his late emplo3'ers, the firm being Brunson, Eastman & Graves. It enjoyed a very large share of the practice of Los Angeles city and vicinity during its existence. The firm was dissolved in 1878. and Mr. Graves was alone until Jan- uary, 1880, when he formed a partnership with J. S. Chapman, as (iraves & Chapman. This firm immediately took liigh rank at the Los .■\ngeles bar. On January i, 1885, Judge Chapman was joined l)y his brotlier-in-l.iw. Judge Ilendrick, of Lassen county, and Gr.ives & Chapman dissolved. Mr. Graves then took Mr. H. W. O'Mel- veny into partnership, under the name of Graves & O'Melveny. The latter gentleman IS a son of the Hon. H. K. S. O'Melveny now deceased. He is a graduate of the State Lmversity, and at that time was a deputy district attorney of Los Angeles county un- der Stephen M. White. In 1888 Mr. J. ]-I. Shankland, for ten years prior thereto the ciltorney for the San Francisco Board of 1 rade, became a member of the firm. Graves, O'Melveny & Shankland have been extremely successful. 'i'hey enjoy the full confidence of the community and represent a large number of local banks and many of the wealthy and important corporations of South- ern California, besides having a large per- sonal clientage. Besides attending to his law practice, ]\Ir. Graves is a successful orange grower, and is extensively interested in the oil industry. He and Mr. O'Melveny have been associated to- gether for sixteen years— longer than any other two members of the Los Angeles bar. Mr. Graves has had his office in the Baker Block since December i, 1878, GILES H. GRAY. Giles H. Gray, whose appearance would in- dicate that he was still on the sunnv side of life, and whom nobody looks upon as an old man, has been at the San Francisco bar for nearly fifty years. He was practicing alone in the middle fifties, then was in partnership for a few years with C. V. Gillespie. In 1864- 65 he was associated with E. B. Mastick (Ma.stick & Gray). For twenty years (1870- 1890) he was in partnership with James M Haven (Gray & Haven). When this firm was dis.solved the two gentlemen continued to occupy adjoining offices, and are at least socially together today, with elegant rooms in the v^laus Spreckels Building. Mr. Gray was a member of the San Fran- cisco board of supervisors in 1863, of the board of education in 1864-65, and of the as- sembly at the session of 1871-72. when he was chairman of the committee on corpora- tions. From 1873 to 1877 he was surveyor of the port of San Francisco, by appointment of President Grant. Mr. Grav removed his residence to Oakland in 1873. He is a man of large fortune. He registered as a voter on May 22. 1869, as being a native of \\-w Wnk. and then aged thirty-five years. Nathaniel Gray, father of Giles H.. was always closely identified with religions and philanthropic work. He was a zealous mem- ber of thf San Franci.sco Bible Society, ami of the First Presbyterian Church, from 1854 until his death, thirty-five years later. l^e was a member of (he assembly at the session of the winter of 1863-64. Among his in.iny acts of benevolence was a gift of $5,000 to the Pacific Theological Seminary. He was born in Massachusetts. July 20. 1808. and died at San Francisco. .Xpril 24. 1889. leaving a considerable estate. His wife, mother of Giles 854 History of the Bench and Bar of California. H.. died January 20. 1887. A sketch of her useful life may be found in the •'Occident" of March 16, 1887. R. S. GRAY. Roscoe S. Gray was born on the 7th day of April, 1857, in Mount Carroll, Carroll county, Illinois. His great-grandfather, John Gray, of Connecticut, was a member of the com- mittee of public safety for King's district, in the State of New York, in the early part of May, 1777, and otherwise rendered material service in aid of the American struggle for independence. Mr. Gray was admitted to the Supreme Court of California on the 5th day of August, 1890; by the Circuit Court of the United States for the ninth judicial circuit in and for the northern district of California, on the 17th day of March, 1893 ; and on the same date, by the District Court of the United States for the northern district of California; and by the United States Circuit Court of Appeals for the ninth circuit on the 3d day of April, 1893. He has been in partnership with Hon. Charles N. Fox, ex-Justice of the Su- preme Court, since 1892. This firm has always had a large general practice. E. S. HALL. Mr. Hall was born in Virginia, in 1854. His early education was received from private tuition, before the public school system was established in that state. Removing to Iowa in boyhood, he attended the public schools, the Normal School, and Lincoln Academy. He taught school in Iowa until he came to Cali- fornia, which was in 1875. Locating at Santa Barbara, he studied law in the office of Judge E. B. Hall, who was his uncle. In 1879 Mr. Llall was admitted to the bar, and soon afterwards removed to Ventura, and began the practice. In 1881 he was united in marriage with Miss Robertine B. Hines. daughter of Hon. J. D. Hines, then Superior Julge of Ventura county. He was elected district attorney in 1882, and served one term, but declined to run again for any office. In 1886. on account of ill health, Mr. Hall gave up the active practice of the profession, taking up real estate and insurance business, as affording him more active out-door exer- cise. He is now engaged again in the prac- tice of law, particularly as it is related to real estate, the examination of titles, etc. He is a member of, and attorney for, the Ventura Title and Abstract Company. FREDERIC W. HALL. Frederick Winslow Hall comes of old New England stock, and was born in Gorham, Maine. March 20. i860. He fitted for college at Gorham .Academy and Kent's Hill, and en- tered Bowdoin College in 1876, where he grad- uated in 1880, with first honors. Immedi- ately after graduating, he came to California, studied law with Hon. J. F. Wendell, at Fair- field, Solano County, and later with Hon. Samuel G. Hilborn, at Vallejo, and was ad- mitted to the bar in 1882. He at once com- menced the practice of law at Vallejo, and soon built up a lucrative and substantial busi- ness. In 1887 he removed to San Francisco, where he formed a partnership with his uncle, the Hon. Samuel G. Hilborn, since deceased, under the firm name of Hilborn and Hall. This partnership continued until 1895, when Mr. Hilborn retired to devote his entire time to his duties as a Member of Congress, since which time Mr. Hall has been practicing alone. Mr. Hall is a well-read, careful, clear- headed and hard-working attorney. His reg- ular clientage is large and valuable. He has handled many important cases, and has met with eminent success in the Supreme Court of this State and of the LTnited States. He is a good business man, and acts as business and leeal adviser for several large estates. His choice of the legal profession was clearly no mistake. Like most successful attorneys, he has made something of a specialty of corpora- tion law, and nutnbers among his clients many wealthy corporations. Honorable in his dealings, true to his word, and sound in his advice, he retains the confidence of all who have dealings with him. Mr. Hall married, in 1889, Miss Maud E. Noyes, daughter of Mr. Crosbv S. Noyes. editor of the Washington (D. C.) Star, and has two children. CHAS. F. HANLON. Colonel Chas. F. Hanlon began his career at the bar when twenty-one years of age, in San Francisco, where for many years now his name has been one of the most familiar to the profession and the public. He was born in New York city January 19, 1856. He was educated at colleges in San Francisco and read law with John M. Burnett, becoming a member of the bar of the State Supreme and Federal Courts at San Francisco in 1877. He conducted busi- ness involving a fortune before the Supreme ^. H, H, Hart History of the Bench and Bar of California. ^0< Court of the United Stales at W'a^liingtun, where he was admitted in 1885. Twelve times he has crossed the continent on Inismess be- fore the courts of New York. Pennsylvania, Massachusetts and District of Columbia. The Donahue railroad in New York, the Kben D. Jordan's millions in Boston, and other large interests were protected by litigations won by him in the East. A man of great ambition and extraordinary energy as well as capacity for legal business, he easily secured a large following. For a decade or more, he has been one of the most conspicuous and prosperous lawyers of the State. He had the adjustment and management of the railroad interests and estate of the late Colonel James Alervyn Don- ahue, whose father. Colonel Peter r3onahue, had also intrusted to him a large volume of legal business. By the unfortunate ventures and speculations of James Mervyn Donahue, his estate, when he died, was so crippled that creditors and legatees offered their claims for ten cents on the dollar. In fi\e years' work, involving the winning or settling on his terms of ninety cases in litigation. Colonel Hanlon turned over one and three-(|uarters millions to the estate; thus giving a fortune to the heirs after paying every creditor and legatee dollar for dollar. The court fixed his fee at ninety thousand dollars. He was chief general counsel and a director of the San Francisco & North Pacific (Donahue) Rail- road Company for many years. The volumes of the California reports show the heavy liti- gations won by him for that company. He was the attorney for the million dollar estate of Annie A. Pratt, whose will he broke in Los Angeles, after a five months' jury trial, the longest ever had in Southern California. He was the attorney in the million dollar estate of the wealthy pioneer jurist of Oregon and California, O. C. Pratt. His fees in these estates are estimated at over $125,000. In an interesting case, tried about 1890. as we remember, on an appeal which he tQok to the Supreme Court for the Daily Ilxauiiiicr. whose attorney he was, that tribunal in seven separate o])inions by the seven Justices sus- tained his contention that newspaper reporters, in trials in which the iu'ws])aper is not a parly are not compelled to divulge facts and statements made to them in confidence. There is no s])ace, however, to even glance at the many interesting and important cases which he has carried to a successful issue. The lat- est to challenge sjiecial notice from the bar and the peo])le is the case of T.ucy Hite. the Indian woman. Colonel Ilanlon, as her attor ney. along with Van R. Paterson. who called him in at tlie trial, made a fight which attract- ed attention in the newsi)apers in the Fast as well as in the West. John R. Hite. after twenty-six years of recognized m.'irried life with Lucy Hite. taking from her the Indian mine which bore him five millions in gold. \n\\ her aside and married a white woman. I.ncy sued for divorce, but Hite denied her a-- a wife, and engaged an array of lawyers and .1 horde of detectives, .nid tlu' contest bitweni the attorneys at llic trial almost resulted in bloodshed, but the cnurl \ indicated Ijh"\- as the wife, giving her lu'r t'ull riglit in Mite's millions. Colonel Hanlon is one of those lawyers who, although pressed with professional cares, yet finds time to give attention to matters of pub- lic concern. He has for many years been a director of the. Crocker "Old People's Home," and vice-president thereof. He is one of the most sedulous guardians of the welfare of that excellent institution. He delivered the address at the laying of its corner-stone. Sub- sequently, Colonel Fred Crocker in a public address delivered him the keys. He was the orator of the day at various celebrations in San Francisco. He was for three years in the ranks of the California National Guard, was then promoted to Major and afterwards to Colonel on General Di- mond's staff. He was for four years on the staff of Governor Stoneman, and was after- wards on the staff of Governor Bartlett. The Colonel is a Democrat ; has been pres- ident of various clubs: has been a prominent member of nearly every State convention of his party since 1880, and also of the State central committee. He is stanchly anti-boss, and his influence .is always thrown in favor of pure politics and honest government. He is a man of clear thought, a strong, logical speaker, a tireless worker and student, and a man of clean life. W. IT. II. HAR' W. H. 11. Hart, who was leading counsel for the successful claimant to the great es- tate of Thomas H. Blythe. and atiorncy-gen- eral of California for the period, January, i8yi, to January, 1895, was born in Yorkshire, Eng- land, January 25, 1848. The eye would hardly turn thither in expectation of finding a child named after a President of the L'nited States (William Henry Harrison). But. keeping him in view, we shall see him in the ranks i>f the American army as a boy soldier, in the great conllict of the Civil War. Mr. Hart's father brought his family ii> ihis country in May, 1852. and settled in lib nois. In April, 1856, the son. a child of eight years, was stolen liy Indians. \\c was recov- ered in the following October. The family removed to. Iowa in the spring of 1857. where the wife and mother died a year l;iter. the f.i- (her following her in April, 1839. The bo\ supported himself by herding sheep. He at tendtd school for (wo winters with a young man fif(een years his elder, named Hinckley. When the war broke out. the boy was thir- teen years old. Even at (hal age, he was e\ I)er( in (he use of fire-arms. He went to Cairo. Illinois, to enlist. I( was (he wiiKer of i86i-()2, ami Grant was slationeil (here. His friend Hinckley was now (here also, and was in (he confidence of the great gener.il. for iinpor(an( services rendered. lie com m.inded a company of priva(e scou(s. ^'oung Har( joined (his e()mi)any in January. 1862, He took part, with his company, in tlu- Grant c.impaigns of Donelson, .Shiloli. \'icksl)ing and {^ha((anooga. .■\( (he ba((le -if Missionary Ridge he was in commaiul of Hinckley's com- f)any. and while the bcrnrr "f .m mipori.ini 858 History of the Bench and Bar of California. dispatcli from Grant to Sherman, across a country held hy Confederate forces, he was three times wounded in crossing this territory from Citico Creek to Slierman's right, a dis- tance of about two and a half miles. The young scout recovered from his wounds, and returned home in March, 1864. He be- gan study at the public school, but in May enlisted in the Forty-fourth Iowa, as a pri- vate. He was mustered out of the service in September following, and in that fall acted as a scout for General Thomas at and around Nashville, took part in the famous battle of that name, in December, 1864. and. in Feb- ruary. 1865. enlisted in the One Hundred and Forty-seventh Illinois. He was wounded again in April, 1865. at Pulman's Ferry. He was finally mustered out in February, 1866. The young man's attention was turned to the law as a profession in the summer of 1865. when he was seventeen, and while he was doing provost duty at Dawson, Terrell county, Georgia — where a Judge on the bench had pre- sented him with a copy of Blackstone and ad- vised him to read it, which he continued until he was mustered out. After this, for two years, he devoted himself to law, reading at night while attending the public schools in the day. He was admitted to practice in the County Courts of Iowa, September, 1868. and four months before he was of age. in the District Court in Iowa, in September, 1869. and to the Supreme Court of that state in April. 1870. He was elected city attorney of De- Witt, Iowa. He acquired reputation as a criminal lawyer, although he has never fol- lowed that department of the practice in Cali- fornia. Mr. Hart came to this State in 1873. and began law practice in San Francisco. He soqn became prominent in both law and politics. In 1886 he was the Republican candidate for attorney-general, receiving 7400 votes more than his candidate for Governor, but was de- feated, with nearly all of his ticket. In 1890 he was again the nominee of his party for at- torney-general, and was elected. He made a very "industrious and able attorney-general. Since he left that office he has not been in public life, but has been occupied with a large private law practice. Among the valuable es- tates in which he has been employed as at- torney since the settlement of that of Thomas H. Blythe. may be mentioned the estate of L. P. Drexler. Mr. Drexler. an old resident of San Francisco, died in 1899. leaving property of the appraised value of nearly two millions. Thomas H. Blythe was the assumed name of Thomas H. Williams, an obscure English- man, who arrived in San Francisco on August 4. 1849. on the ship Antelope. Captain Aysh- ford. from Liverpool. His name appeared only thrice in the city directories down to 1874. and then he did not disclose his business. In 1874-75-76 he gave his occupation as that of a real estate dealer. Then every year for seven vears. until his death, he held forth as a "capitalist.". with his name in large type. He was a bachelor and a Mason, and a very rich He acquired the city building lots which made him a millionaire — in the Gore block, bounded by Market and Gearj-^ streets and Grant avenue, by two deeds from James Findla, another pioneer, who made a large fortune as a dealer in coal.* The deeds (we have examined them on the public records) were both quit claims, the first, of December 16, 1850, conveying lots 36, 27, 38, 39. 899 and part of 900, for the sum of $810; the other, of January 17, 1851, convey- ing the southeast corner of Grant avenue and Geary street, 275 feet on the avenue, and 125 on the street, for $1400. Blythe was never known outside of a nar- row circle, and led a quiet life in San Fran- cisco for thirty-four years. His legal adviser was Henry H. Haight (who came to be Gov- ernor of the State, 1868-71), until the latter's death, when he took counsel in his business affairs, among others of General W. H. H. Hart. Blythe died suddenly at San Francisco, on April 4. 1883. "It is probable," said an editor, "that had Blythe lived ten years longer he would have been bankrupt. He liad bought a large estate in Mexico, and his plan was to return to Mex- ico as the lord of a vast estate. It was the English idea. Blythe would figure in the New World as he could not in the old. He would have large numbers of dependents, and would in time match his new possessions, for their extent, against those of the richest landlord in Great Britain. Blj'the's vision of terri- torial magnificence, of hundreds of retainers, of a vast estate, over which he would exer- cise something akin to feudal authority, was extinguished by his death. The millionaire lay down one day in his rooms, gasped a few times, and was gone." No will was ever found. His attorney, General Hart. had. at his request, made a rough draft of a will, in which, among other legacies, was one of $10,000 to the General. This paper was not discovered afterwards. Blythe was buried, with the rites of the Ma- sonic order. General Hart had learned from Blythe of the existence in England of a child, and he arranged to bring Florence Blythe to San Francisco to take her place upon the stage of a lon^ drama. Florence was born in December, 1873, and was not ten years old. The San Francisco estate left by Blythe com- prised entirely of the land before specified, and improvements, was worth not less than $2,000,000. It largely increased in value before final distribution. The right of the child to the estate was contested by a large number of claimants, coming from all parts of the world. The great controversy fell to Judge Coffey's de- partment of the Superior Court. Several years were passed in the examination of the various pretensions, and in due time Florence, by * See the strange case of Findla vs. San Francisco (13 Cat. 534). and Middleton vs. Findla (25 Cal. 76). History of the Bench and Bar of California. b5y guardian, with General W. H. H. Hart as attorney, associated with McAllister & Ber- gin, brought an action before Judge Coffey, under section 1664 of the Code of Civil Pro- cedure, to determine the heirship and title to the estate, which section provides that in all estates now being administered, or that may hereafter be administered, any person claim- ing to be heir to the deceased, or entitled to distribution in whole or in any part of such estate, may at any time after the expiration of one year from the issuing of letters testa- mentary or of administration upon such es- tate, file a petition in the matter of such es- tate, praying the court to ascertain and de- clare the rights of all persons to said estate and all interests therein and to whom distri- bution thereof should be made. All the other claimants made answer, traversing the pre- tensions of plaintiff to be the child and heir of deceased, and alleging that she was the offspring of one Joseph James Ashcroft and his wife, Julia Ashcroft, nee Perry, and by way of cross-complaint, averring respectively their own claims to heirship, ownership or interest in the estate. The trial of the issues thus joined be- tween the parties litigant began on the 15th of July, 1889, before the court, without a jury, an express waiver of a jury having been made in open court. The trial of this action before Judge Coffey occupied a full year, beginning on the iSth of July, 1889. There were 208 witnesses ex- amined, and dcpositons read of 139 other per- sons. The argument of the case was opened on the loth of April, 1890, and the counsel who participated were: For the plaintiff, the child Florence, W. H. H. Hart, W. W. Foote, and John H. Boalt ; for the Williams heirs of Liverpool, E. R. Taylor, W. S. Good- fellow ; for James DeWitt Pearce, Ramon E. Wilson; for the Blythe Company, H. P. McKoon and G. W. Towle; for the Gipsey Blythes, E. Burke Holladay and S. W. Hol- laday ; for the London Savages, L. E. Bulke- ley ; for William and David Savage, M. Wald- hcimer and T. J. Lyons; for Alice Edith, the alleged widow. E. D. Wheeler and Henry "E. Highton. Selden S. and George T. Wright submitted the claim of the Scotch-Irish Sav- ages without argument. Judge Coffey decided the case in favor of Florence on the 31st of July, 1890. (In this connection, the reader is referred to the sketch of Hon. James V. Coffey.) Some thirty appeals followed to the Stale Sui)reme Court, four of which went to the Sui)renic Court of the United States. For another long period General Hart's resources of mind, as well as his physical stamina, were severely taxed, as he was compelled, as the princii)al counsel for the plaintiff, to give his tun-e- mitting attention to allof these appeals. He argued them in the State Supreme Court, and at Washington. His reward came when tlie Stale Supreme Court affirmed Judge Coffey's decision on November 30, 1892. There were further de- lays, but the public administrator, wlm liad charge of the estate from the beginning, finally placed Florence in possession on the 4th of December, 1895. In that month the girl of ten summers in 1883, had become twenty-one years of age, and was the wife of Frederic W. Hinckley, a worthy young man, a native of San Francisco, the son of Daniel B. Hinck- ley of the Fulton Iron Works. When Mrs. Hinckley, with her tried and trusty counsel by her side, was placed in pos- session of the block of land in the very center of the great city, the property was worth at a conservative estimate, $2,500,000, and yielded a rental of $12,000 a month. It was not until some years after this, how- ever, that Mrs. Hinckley's title was finally settled. General Hart's last call to Washing- ton in the case was in March and April, 1897. The matter then under consideration was a writ of error asked by the Gypsy or Ken- tucky Blythes. The attorneys for the latter made the point that Florence Blythe, having been born in England, and not having come into the United States before the death of her father, was an alien, and being an alien, she could not inherit the property in the State of California without there being a provision in the treaty between Great Britain and the United States permitting her to do so. In other words, Jefferson Chandler claimed that an alien can only inherit when a treaty ex- pressly permits it, and that the states have no authority, by reason of their sovereignty, to pass any law allowing aliens to inherit unless permitted to do so by treaty. The L^nited States Supreme Court sustained Gen- eral Hart's contention and denied that of Mr. Chandler. (Blythe vs. Hinckley, 167 U. S. 746; Blythe Co. vs. Blythe, 172 U. S. 644; Blythe vs. Hinckley. 173 U. S. 501. ) There is one case still pending in the L^nited States Supreme Court. Mrs. Florence Blythe-Hincklcy arranged to settle all claims presented against her by at- torneys and others who were instrumental in eslablishing her rights as sole heiress of the late Tiiomas H. Blythe by Inlying from them their part of the Blythe lilock and making cash payment. General Hart retaining one- eighth interest in the Mexican and lands out- side of San Franci.sco, which makes his fee ■ one of the largest, if not the largest, ever paid in this country. The value of the whole block was esti- mated, in round figures, to be $2,500,000. Mrs. Hinckley retained $1,500,000 worth of prop- erty and $1,000,000 went to the people tliat fought for her cause. L'nder the private agree- ment existing l)etween themselves, the attor- iievs and f)lhers tli.it assisted her, received the following sums: W. W. Foote and Garher, I'xi.ilt 1*1- Bishop. $200,000: Thomas I. Bergin, $75,000: the estate of Mrs. Hall Mc.MlisIer, $112,500: W. H. H. Hart. $325,000, and one- lighlh of all property other than the Blvflic l.I. ok. Geiural ll.ut is largely interested in mining, and in the recent oil discoveries in Central California. He is well versed in metallurgy .-md lias l;irge experience in mining litigation. 860 History of the Bench and Bar of California. |l and is devoting almost his entire time to min- ing and probate law. and is attorney for sev- eral corporations. HORACE M. HASTINGS. Horace M. Hastings, who was city and county attorney of San Francisco in 1867-68. was Jjorn in New York in 1836. He was graduated from Union College and the Albany Law School, and was adinitted to the bar at Albany. New York, in December, i860. He located in San Francisco in March. 1861. He removed from the State in the fall of 1871, and has since been assistant district attorney in New York City, and an assistant in the United States attorney-general's oflfice at Washington, D. C. He was living in New- Jersey as late as 1893. A. (;. HINCKLEY. Acliil])hus G. Hinckley was born July 29. 1856. in Richfield. Adams county, Illinois. As a part of his business education, at the age of thirteen, he commenced paying his own ex- penses by service as a shorthand writer. He read law in the offices of \\'heat. Ewing & Hamilton in Quincy. Illinois, Hnn. Emory A. Storrs of Cliicago. llun. Jdhii K. Cowan nf Baltimore, and Hon. Henry C. Baldwin of Connecticut ; and commenced practicing before justices at the age of eighteen. His work gave him intimate relations with some of the most eminent men of the country, the benefit of whose methods and example have been of inestimable value to him. He was admitted to practice before the Su- l)reme Court of Illinois, and followed his ])rofessipn in Chicago and Topeka. Kansas, until lie removed to Los .Xngeles. California, in .'\pril. 1883. where he has since resided and practiced law. Mr. Hinckley is descended from the sturdy, self-reliant, independent type of men who have been leaders in the world's history. Among the nobles whf) wrested from King John the Magna Charta was Baron Hinckley, whose crest and coat of arms are still preserved in the family, later Samuel Hinckley left Kent, and landed on Plymouth Rock in 1635. when .America was a wilderness of wild beasts and savages • and his son Thomas Hinckley was the last Governor of the Plymouth Colony before it was consolidated with the Massa- chusetts Colony; Elkana Hinckley fought in the Revolution, with his father, and his son Thomas Gage Hinckley was in the War of 1812. and in the War with Mexico: and his son, Jesse Clinton Hinckley, and another son, Record W. Hinckley, with the latter's three eldest sons, were in the Civil War as Union soliders. Besides being renresented in every war that this country has ever had. the ancestors of Mr. Hinckley have been among the pioneers who blazed the pathway of civilization in its march westward. His father. Record W. Hinckley, originated the policy of giving alternate sec- tions to build railroads through the West to the vast territory acquired in the Mexican War. and finally, in 1849. ^^y petition to con- gress, coupled with the gold excitement in California, his idea became the law of the land, and led to the rapid development of the great West. Mr. Hinckley is clear. i)rompt and pleasant in his dealings, exact and honorable. His (|uickness of perception and fertility of re- source afford him advantages in argument, and contribute to his success in negotiation. He has a warm, sympathetic nature, ever ready to help the unfortunate, and much of his most arduous labor has been for those whose only means of payment was gratitude. .Although Mr. Hinckley's business experience has covered so many years, the fre.shness of youth is still upon him. He is a genial com- panion, a true friend, and a man who can be (le])cn(leil u])on in all things. JAMES M. HAVEN. James M. Haven, a prominent and success-' tul lawyer of San Francisco, was born in New ^'ork. November 9. 1827. He was admitted to the l)ar at Downieville. Sierra county. Cali- fornia, in 1863. where he was deputy prov(xst marshal and deputy collector of internal reve- nue, in 1862-64. He was suiJerintendenl of schools of Sierra county in 1864-63. and dis- trict atlftrney in 1866-67. He arrived in the State on March 26. 1850. and .spent several years in mining before entering on law prac- tice. He has been at the l)ar in San Fran- cisco since 1868. For a long period he was associated with Hon. Giles H. Gray, but for many years now has been in ])artnership with his son. Thomas E. Haven. He is a safe ad- viser, a careful practitioner, a moral and re- ligious man, being an active member of the Congregational Church, and is held in general regard. He has made his home in Oakland since 1876. IIOR.ACE HA WES. Horace llawes. not the i)i(ineer lawyer many I inns referred to in these pages, but the au- thor of two l)ooks in the Pony Series, on Par- lies to .Actions and Jnri'-diotinn of Courts, pub- Will A. Harris History of the Bench and Bar of California. 863 lislied, respectively, in 1884 and i88b, was born in VVrcntham, Massachusetts, completed his literary course in the Boston University, and graduating from the law school of that uni- versity, was admitted, to the bar by the Su- preme Court of Massachusetts. He came to California in 1871, and was en- gaged for a year in commercial business at Santa Cruz. Then returning to Boston, he en- tered upon professional work in the office of the law firm of Russell & Sutcr. In 1875 he came back to California, and was in practice in San Francisco, associated in bus- iness for five years with ex-Congressman P. D. Wigginton. He then removed to Fresno, and is still in large practice there. was being carried rapidly out to sea, before the eyes of iiis father and sister. Mr. Harris is a man of family. His wife was Miss Nettie Allen, a young lady from Ohio, whom he married at .San Bernardino. WILL A. HARRIS. This gentleman, who enjoys great popularity in Southern California, and a high reputa- tion at the bar, is a native of Tennessee, and was born in 1850. He is descended from an American family of the era of the Revolution. His father, A. G. Harris, was in the Confed- erate Army, enlisting as a lieutenant, and be- coming a colonel of his regiment. Mr. Harris was educated at the Cumber- land University, at Lebanon, Tennessee. Hav- ing prepared himself for the bar and been ad- mitted to practice by the Supreme Court, he followed the profession at different places in his native state, but for the greater part of the time at Memphis, down to 1875. In that year he came to California, and located at San Bernardino. His name soon became familiar to the bar and people of the southern counties. he built up a large and general practice. He had been in his new home only two years when, in 1877, he was elected district attorney, and served one term. Mr. Harris remained at San Bernardino for the considerable period of eighteen years. Then, in 1893, he was impelled to seek a larger field. He removed to Los Angeles, and through the years since passed he has been in the most active and profitable practice, and in the front rank of the able bar of that place. His business is of all departments. He is cel- ebrated for his skill and ability in criminal cases, while among his clients also are bank- ing and other corporations. In politics, Mr. Harris was a Democrat un- til the year 1896, when he became a Repub- lican because unable to accept the principles of the Democratic platform, adopted at Chi- cago in that year. He took the platform in that campaign, and made many speeches, prin- cipally on the money question. Mr. Harris is a typical Southerner, and a picturesque character. Of fine face and ex- cellent address, with much kindness of heart and courage of a high quality, he couKl com- mand success among any people whose lan- guage he could speak. He wears the "Life-saving Gold Medal." presented to him by the government, for great daring in phmging into the surf near San Diego, and bringing to land a young man who NICOLAS A. HAWKINS. Mr. Hawkins was born in Crawford county, Missouri, May 31, 1856. His parents were natives of Lexington, Ky. By them he was brought to California in i860, and they' set- tled in the Santa Clara valley, where his brothers and sisters still reside, most of them at Hollister. Mr. Hawkins received a liberal education, after which he studied law and was graduated from the Albany Law School in 1879. He located at Hollister. He was district attorney of San Benito county for two terms. In 1887 he removed to Woodland, where he has since practiced. He was suc- cessful at Hollister. but gave up a good prac- tice because the climate was too changeable, and upon the advice of physicians, he sought a warmer nlace. He has been fortunate in his present location in many ways, for he n )t only has a good business, but enjoys per- fect health. His practice is altogether civil, and the most important matters are placed completely in his charge. The people of means take him their business, and it has been his good fortune seldom ever to lose a case. He is accounted a very safe adviser. Almost any one who has had business in Woodland can testify to this. He tries a case fairly well, but it is in office work and the preparation of cases that he excels, and stands out as master of the situation. Mr. Hawkins is married and has two boys, aged fifteen and twenty years. BENJAMIN HEALEY. Benjamin Healey, a very capable and well- known lawyer, has been at the San Francisco bar since 1885. He located in that city in 1874. coming from Cariboo, where he had been engaged in mining for some years. He has raised a large family and acquired a comfort- able estate. His special line of business is pro- bate. He is a strongly built man. in the prime of life, keeps at work early and late, and dis- patches an enormous amount of business. He has never had a law partner. He possesses the most generous and fraternal nature, and multi- ttides rejoice at his long prosperity. .Some of his children are grown. He owns a fine home on Green street hill, overlooking the bay and ocean. LYNN HELM. Lynn Helm was born in Chicago. Illinois, in 1857. He is the son of Stanley T. Helm, a lawyer who has practiced at the Chicago bar since 18^4. Lynn Helm was educated at Princeton Col- lege in the class of '79. After graduation he studied law with his father, and afterwards practiced law with his father as the firm of .S. T. S: L. Helm, in Chicago, until he came 864 History of the Bench and Bar of California. to California. While in Chicago he was em- ployed in some imporlanl litigation as to spe- cial assessment, and condemnation cases, and also in the trial of damage suits. Mr. Helm came to California in April. 1896. and since then has practiced in Los Angeles. He has there been engaged in litigation in- volving a great deal of varied interests. He was acting for the plaintiffs in the case of Garwood vs. West Los Angeles Water Com- pany, and in Palm vs. Denver & Rio Grande RaiJroad Company. In the last case, a datnage suit, he secured a verdict for his client of $13,000, which was ultimately affirmed by the United States Circuit Court of Appeals. Mr. Helm was married, in 1888, to Miss Annie Horlock, in Chicago. His family con- sists of his wife and three children. He is a member of the California Club, and is a mem- ber and treasurer of the First Presbyterian Church of Los Angeles. E. W. HENDRICK. E. W. Hendrick was born in Pike county, Missouri, and resided there until the age of fourteen, when the desire to see the world, so common to the American youth, led him to leave home and try his fortune in the far West. He spent three years in Colorado, Oregon, and California, and finally concluded to obtain a university education. He devoted to study six years in Rhode Is'and, and grad- uated at Brown University with high honors. After graduation he spent fourteen months in Europe in travel and study, whence he re- turned a more ardent American than ever. He came again to California, and after being admitted to the bar. opened an office in San Diego in 1874, since which time he has enjoyed a lucrative practice. Mr. Hendrick represented the county of San Diego as a member of the legislature in 1881. He has been district attor- ney, and has also occupied other local posi- tions of honor and trust, such as city attorney and attorney for the public administrator. He is associated in practice with Mr. Leroy A. Wright (Hendrick & Wright), and is one of the strongest men at the California bar. BARCLAY HENLEY. This gentleman, who has been for a long period a conspicuous figure at the bar of the State, was born in Clark county, Indiana, March 17, 18^3. He came to California at the age of ten years. His father. Thomas J. Henley, always a man of commanding in- fiuence in the Democratic party, was a repre- sentative in congress from Indiana for four consecutive terrns. 1842-1849. He was a Cali- fornia pioneer, and represented the Sacra- mento district in the assembly at the first ses- sion of the legislature. 1849-50. He was after- wards commissioner of Indian affairs under the general government. He sent his son, Barclay (he had several sons), back to his native .state, where he was educated at Han- over College. The son studied law in San Francisco, and was admitted to the bar of the State Supreme Court in 1864. Barclay Henley began his distinguished pro- fessional career in Sonoma county, where he maintained his residence for many years. He represented that county in the assembly at the eighteenth session, the winter of 1869-70. The legislature was Demacratic in both branches. Mr. Henley was chairman of the house com- mittee on federal relations, and offered the res- olution rejecting the fifteenth amendment to the federal constitution. In 1875-76 he wa.>^ district attorney of his county. In the Tilden- Hayes contest of 1876 he was nominated a Presidential elector on the Democratic ticket. In 1880 he was again nominated for that of- fice, and was elected. In November, 1882, he was elected a representative in the forty-eighth congress, and was continued in the forty-ninth congress, his period in the national house of representatives being from March 4, 188^. to March 4, 1887. In both State and federal legislatures he won general applause for his industry, his strong common sense, and his compass of thought in di.scussion. These are among the qualities that have marked his ca- reer at the bar. Mr. Henley removed from .Santa Rosa to San Francisco in 1888. and formed a law part- nership with Charles J. Swift and William Rigby (Henley. Swift & Rigby). Mr. Rigby withdrew after two years, and Henley & Swift continued a year longer, when Howard Mac- Sherry took Mr. Swift's place in the firm. In 1803 Mr. Henlev formed a partnership with Mr. .Stephen V. Costello, the same gentle- man who in 1900 was one of the Democratic candidates for Superior Judge. The firm of Henley & Costello has been a leadinaii Ga- 868 History of the Bench and Bar of California. \)V\'A. ihc third (lauKlilor nf [)v. W'iliiaiii (jcllcr. The}' have no cliildren." When the Southern Pacihc Company wa-- asking a subsidy from Los Angeles county, and a bonus to build the road into Los Angeles city. Judge O'Melveny was chairman of 'the citizens' committee which conferred witli Mr. Hyde, the company's agent. Tiie meeting was held and a proposed contract drafted, in the law office of O'lVIelveny & Hazard. Mr. Haz- ard inserted in the document a clause which has done more than anything else in its his- tory to make our southern metropolis great and prosperous. After the words declaring that the road should be constructed to Los Angeles. Mr. Hazard inserted the following: "It shall go thence by way of San Bernar- dino, through the Gorgonio Pass, to a point at or near Fort Vuma. on the Colorado River." in an address which he issued to the public, when a candidate for mayor, some years aft- erwards. Mr. Hazard said in reference to this occurrence : "This clause was objected to l)y Mr. Hyde, the agent, and he was ordered to return to San Francisco, and the contract was declared off. I still insisted on retaining that clause in the contract, because 1 knew that if they were permitted to build direct to San Diego, and thence to Yuma, and not go directly from Los Angeles across the continent, our vitality would gradually go to the Bay City, and Los Angeles would be but a way station on the transcontinental line." We believe that a further and more ex- tended passage from this address of historic interest will be acceptable to the reader. "We did not then occupy the independent position which we now possess. The commit- tee was inclined to recede from the position and permit this clause to be expunged, but whether you believe it or not, it is due to my determination not to permit the same that the committee finally agreed to stand by it and insist on a route directly east from here, or no subsi'dy. They were apprehensive that we might get no road unless we receded, but I knew that the road could not be built through the San Fernando Mountains unless the com- pany received our subsidy. I was blamed at the time, but I stood firm. After several months. Mr. Hyde was sent back to renew ne- gotiations and agreed to this condition. I stated liiat the subsidy would carry with that condition in it. and without it. it would not carry, and I promised that if the clause were retained I would personally canvass the county for the railroad subsidy, which I did. At the request of those acting for the campaign. I took charge of it and made speeches in every important voting precinct in the county. I issued an open challenge to meet any one op- posed to the same, and they were many at the time, and I did meet them in many pre- cincts. As a result the bonds were carried by a large majority. After the election was over. I was invited by the Southern Pacific Railroad Company to make out my bill for services. And every one else was. so far as I knew, paid l)y that company for services 111 tliat campaign, and it was the most mem- ur.iJjle one in the history of the county, but I declined to receive a cent for my services in tlial behalf, for the reason that 1 went be- fore ilie people as a citizen and taxpayer and not as the attorney of the railroad com- pany. The road was built, and in i88i. when I was city attorney, knowing the contents of the contract, I demanded the conveyance to the city of the fifty-seven acres which now con- stitute the East Lake Park, because the com- pany had not complied with the agreement whereby the ground was conveyed to them, viz : That they should establish a workshop thereon. They had erected an old shanty on the ground as a pretense of complying with the conditions. At my own suggestion, sin- gle-handed and alone, I began a campaign for the reconveyance of this ground to the city, and succeeded finally in obtaining a deed from liie company to the city for the land." ALEXANDER HEYNEMANN. Alexander Hej-nemann was born at Mel- bourne, Australia, in December, 1858. He lo- cated in San Francisco in 1861. He was edu- cated in San Francisco and in Germany. He has been active at the San Francisco bar since his admission by the Supreme Court, Decem- ber 5. 1879. THEODORE H. HITTELL. Theodore H. Hittell, historian and lawyer, was born in Lancaster county, Pennsylvania, in 1830. In 1832 he was carried to Butler county, Ohio, where he passed his boyhood. In 1845 he went to Miami University, and in 184Q he graduated at Yale College. He was admitted to the bar of Ohio in 1852. He ar- rived in San Francisco in October, 1855, and became assistant editor of the Bulletin news- paper a position he filled from 1856 to i860. In 1861 he joined the San Francisco bar. and became partner of Elisha Cook. In 1867 he formed a partnership with John B. Felton, which lasted until Mr. Felton's death, in 1878. In 1879 he was elected, from his district in San Francisco, to the State senate, and served during the three years of Governor Perkins' administration. In the legislature he was recognized as a constant and laborious worker, and the greater part of the statutes of 1880 was his work. Among other things he re-drafted the entire Code of Civil Proce- dure so as to make it fit the new constitu- tion. Mr. Hittell has done much literary work. His first book. "The Adventures of James Capen Adams, Mountaineer and Grizzly Bear Hunter of California," was published in Bos- ton in i860. "Hittell's Digest of the General Laws of California" appeared in 1865. Ht entered upon the preparation of his great work, the "History of California," in 1870. In 1872 he published a review of Goethe's "Faust." His "History of California" was published in 1897. He has published from time to time a L. m. Hoefler History of the Bench and Bar of California. 871 number of papers on literary and scientific sub- jects, in addition to those named, and several law books. Among the important lawsuits with which Mr. Hittell has been prominently connected may be mentioned the Lick Trust case, the Montgomery avenue case, the Dupont street case, and particularly the San Pablo partition case, in which he was the main driving force from 1868 to its successful finish in 1895. Mr. Hittell was married in June, 1858, at San Francisco, to Miss Elise Wiehe. Mrs. Hittell departed this life at that city in December, 1900. The children are Catherine H. Hittell, of San Francisco, Charles J. Hit- tell. portrait and landscape painter, of San Francisco, and Franklin T. Hittell. attorney at law, of Ukiah. The only grandchild is Theodore H. Hittell, the son of Franklin. L. M. HOEFLER. Here is a busy, well-established lawyer, just entering life's prime, whose sleepless industry keeps him before the eye, and whose charac- ter has fixed him in the heart of the profes- sion. Ludwig M. Hoefler was born in .Xdrian, Lenawee county, state of Michigan, in the year 1858, and came to California when he was nineteen years of age. The law having early possessed his ambition, he applied himself vig- orously to the books, and in due season grad- uated from the Hastings College with the class of 1882. Few lawj'ers in California have served a livelier apprenticeship than Mr. Hoefler. Tak- ing an important position in the law office of the late Alfred H. Cohen, and later with the law firm of Garber. Thornton & Bishop, com- posed of John Garber. Harry {. Thornton and Thomas B. Bishop, he had the benefit of ac- tive participation in the practice and large af- fairs controlled by those well-known gentle- men, and the stimulus and mental discipline, so important to a young man. which are derived from daily association with men in the very forefront of the profession. It was no small privilege to serve the men he did. It was a great opportunity as well. No one. indeed, has ever more faithfully improved his oppor- tunities or better deserves the success which has come to him. In 1896 the firm of Bishop & Wheeler was organized, composed of Thomas B. Bishop, Charles S. Wheeler. Ludwig M. Hoefler. Guy C. Earl and William Rix, with ofiices in the Hobart Building. San Francisco. Upon the withdrawal of Mr. Earl, in August, 1900, the firm was reorganized under the name of Bishon. Wheeler & Hoefler. Mr. Hoefler since the organization of the firm has been one of the busiest lawyers in San Francisco, dis- posing daily of a mass of work which would be appalling to many lawyers, and impossible to not a few of them. That he is able to ac- complish .so much, and to do it so well, is due to the fact that legal and executive ability are happily combined in him, that he is quick and accurate in his conclusions, and absolutely unfaltering and uniirmg ni his attention to business. He is a man of phenomenal energy, while his good, easy temper and obliging man- ner on all occasions win for him universal favor. Those who know him well — and their name is legion, for he has a wide acquaintance over the State — yield him attachment for his broad and liberal, as well as for his unselfish nature. He is, indeed, a true friend and one of the most companionable of men. He is hap- pily married, and has one child, a daughter. S. SOLON HOLL. Here is one of our very oldest acquaintances, an early-day police magistrate of the capital city. S. Solon Holl was born in Lancaster county, Pennsylvania, on the 8th day of July, 1833, of American parents. His ancestors came ■ from Switzerland several centuries ago. Judge HoU's parents settled on a farm in Stark county, Ohio, where he was brought up from infancy. On March i, 1850, at the age of si.xteen, he started for California. The young man joined a 'company of about one hundred men, who assembled at Wheeling, in Virginia, during the first week of March. 1850. This company went down the Missi,ssippi River, crossed the Gulf of Mexico to Grey- town, on the Central American coast, thence up the San Juan River, and across Lake Nic- aragua, to the City of Granada, and thence by ox teams to the port of Realijo. on the Pacific. At this point they took passage for San Francisco, where they arrived, August 17. 1850. He worked at mining in Nevada City for several years, and then at his trade of car- penter at Grass Valley until 1857. He then located permanently at Sacramento. It was at Grass Valley, in 1855, that he made up his mind to study law, and for three or four years thereafter he alternately worked at his trade and studied law, first at Grass Val- ley, and afterwards at Sacramento. While a boy on the farm in Ohio he attended the dis- trict school during the winter months of the year. That log school house on the Ohio farm was the first and last educational insti- tution that he ever had the opportunity of at- tending. BiU he was a persevering student always, and educated himself. In 1859 he began the practice of law in Sac- ramento. In October, 1862, he was elected Police Judge of Sacramento City, and held that office for over three years. .Xfterwards he was appointed city attorney, and filled that position for one year, when the office was in- corporated with that of district attorney. These were the only public ofiices ever held by liiin. ]')uring his term of office as Police Judge llie law [)rohibiling tlu'.itrical performances on Sunday was for the first lime enforced. The records of the Police Court of Sacramento city still show judgments imposing fines on McKean Buchanan. Frank Mayo. Mrs. Saun- ders, Mrs. Judah. Lulu Sweet, William Barry and other stage celebrities, who were convicted before Judge Holl of playing on Sundays. 872 History of the Bench and Bar of California. From that time until the law was repealed it was observed in Sacramento. With the wis- dom or policy of the law. Judge Holl had nothing to do, but he strenuously insisted upon enforcing it, as all other laws and ordinances. For some time after leaving office he gave considerable attention to the practice of crim- inal law, and was frequently engaged on one side or the other in the prosecution of criminal cases. The most important of these was the case of Bill and Tom Yoakum, at Bakcrsfield, in Kern county. The Yoakums were indicted for the murder of two men named Johnson and Turner. There were several trials of the case, which created intense excitement in Kern county. Johnson and Turner were killed by Bill and Tom Yoakum, at Long Tom, in Kern county. in 1878. The double crime was the climax of a long series of atrocities that had run through some years in that county, and in almost every instance there was an utter failure of jus- tice, the criminals escaping punishment. It seemed impossible to enforce the law against murderers, robbers, burglars, and other crimi- nals. Life and property were unsafe, and there was a deep feeling of anxiety and sen- sation in the community. Just at this time occurred within ten miles from Bakersfield the killing of Johnson and Turner by Bill and Tom Yoakum, without the least excuse or provocation. Johnson and Turner were driving along the public highway. John driving a four-horse team, and accom- panied by Turner's sister. Turner driving a two-horse wagon, with his wife hf)lding an in- fant in her arms, and two other small children riding on the same seat with him. Bill and Tom Yoakum were lying in wait behind a ledge of rock, each armed with a Winchester. When the teams reached a point distant about seventy-five yards from the rocks, the Yoa- kums opened fire, and instantly killed both Turner and Johnson. The Yoakums were ar- rested, and indicted by the grand jury, two indictments being found against each defend- ant. At this point Judge Holl was called to Bakersfield by the citizens of Kern county fD prosecute the cases. Bill Yoakum was put on trial first. J. W. Freeman was district attorney. The jury was packed, and in the face of the clearest evi- dence of his guilt, the verdict was an unquali- fied acquittal. Then the trouble commenced. The excitement became more intense than ever, and the destruction of Yoakum by the enraged and excited people was prevented largely by the influence and arguments of Judge Holl, who prevailed upon them to await the result of a second trial. Finally this was agreed to, and matters became more quiet. A few months later Bill Yoakum was again put on trial upon the second indictment. Judge Holl then, at the request of the citizens and by the invitation of the district attorney, be- came the leading attorney in the case for the people. Yoakum moved for a change of venue. The motion was denied, the court being fully aware that to grant the motion would result in the defendant being lynched before he could get out of the court house. This view of the court was fully confirmed by subsequent events. The trial then proceeded, and lasted several weeks. Bill Yoakum was convicted of mur- der in the first degree, and shortly afterwards sentenced to be hanged by Judge Theron Reed. An appeal was taken to the Supreme Court, and in due time that tribunal reversed the judgment of conviction, and directed the lower court to grant the change of venue. This de- cision was communicated to Judge Holl. Sat- urday afternoon, and telegraphed by him to Bakersfield immediately. Within twenty-four hours after this news was received in Bakers- field a crowd of not less than fifty citizens of Kern county, without any attempt at disguise, marched to the jail, broke into it, and in their cells hanged both Bill and Tom Yoakum. The trial was one of the most exciting ever had in the State. A full history of it would read like a romance. Judge Terry was the leading attorney for the defense, and with him were associated a number local attorneys. Of course, this is a mere synopsis. The his- tory, from the murder of Johnson and Turner to the hanging of the murderers by the mob, is full of sensational and dramatic incidents. On the last night of the trial, the court room was full of armed and desperate men. intent upon killing Judge Terry should he interrupt the closing argument for the people, as he had done during the argument at the first trial. His discomfiture in the attempted interruption saved the court from witnessing a frightful scene. In January. 1868. Judge Holl was married in San Jose to Miss Julia Hartwell. Thej' have two children. James H. and Charles C. Holl. The former is raising stock in Lassen county, and the later is an attorney. G. M. HOLTON. George M. Holton was born at Hillsdale, 'Michigan, on February ist, 1845. His father was by occupation a contractor and of Welsh ancestrj'. History of the Bench and Bar of California. 873 George M. Holtoii received his education in Michigan, at the Pontiac High School, Ypsi- lanti State Normal School, and Oxford Acad- emy. He studied law at Pontiac in the office of Hon. M. E. Crowfoot, and was admitted to the har by the Supreme Court of Micliigan in November, 1870. He practiced law at Houston, Texas, for about eight years. Mr. Holton came to California and settled at Los Angeles in November, 1878. He has been practicing law in that city ever since, except when in public life. In 1884 he was elected district attorney of Los Angeles county, being the first Republican to hold that office ; and served the term, which was then two 3'ears. it was during his administration of that office that the fine, elevated site, since crowned by the sightly court house, was pur- chased by the county, the work of passing" on the title and preparing the necessary papers being done by him. In 1895-98 he was chief deputy under District Attorney John A. Don- nell. In 1879 Mr. Holton was united in marriage to Miss Cornie E. Arrison, who bore him four children. His wife died in 1892, and but one child, a boy of twelve, is now living. In 1895 Mr. Holton married Zoe Mae Dibble. Mr. Holton has always practiced law by himself, and is at present located at 218 South Broadwav. F. A. HORNBLOWER. F. A. Hornblower, Judge of the Police Court No. I, San Francisco, for the year 1887-88, is a pioneer of August, 1849. I" the fifties he followed mining and law practice in El Do- rado county, holding several public offices. He removed to Sacramento city, where he was proprietor of the Golden Eagle Hotel for a few years. He located in San Francisco in 1875, and kept the Commercial Hotel, with Homer P. Saxe, 1876-77. He resumed the practice of law in 1881. He was born in London, Eng- land, of parents born in the United States, in February, 1823. JOHN A. HOSMER. John A. Hosmer, wiio was a veteran public prosecutor in San Francisco, was born in Ohio, September 15, 1850. He was admitted to the bar at Virginia City, Montana terri^ tory, in 1871, having studied under his father, who was the first Chief Justice of the Supreme Court of that territory. He settled at Stock- ton, California, in 1873, and was district at- torney of San Joaquin county in 1876-77. Mr. Hosmer removed to San Francisco in August, 1882. He served as managing clerk in the offices of H. E. Highton. John H. Dick- inson and E. F. Preston. He was assistant district attorney from 1885 to 1897, excepting the years 1887-88. serving under District At- torneys Wilson, Page and Barnes. He was married in 1884 to Miss Lucie Brewster, a daughter of General John A. Brewster, for- merly survevor-general of this State, who laid out the city vears. History of the Bench and Bar of California. sn Mr. Jarrett has been publicly recognized as an organizer and political factor of influence by the Republicans of his district, who gave him the nomination for State senator. He polled a highly complimentary vote for an office he did not seek. In the conduct of legal practice, pertaining to matters affecting fraternal and beneficiary insurance orders, Mr. Jarrett has proved a successful practitioner. In cases where ques- tions of parliamentary and fraternal ethics were before the civil courts for adjustment, and where vital questions were at stake, his points of law have generally been sustained. He is a reliable authority on the matters affecting the rights and jurisdiction of frater- nal associations. Mr. Jarrett has been the presiding ofiicer of more than twenty social, political and fra- ternal clubs, societies and orders in the past twenty years. He held the office of district deputy grand master of the I. O. O. F., in 1898, and is at present an active and trusted officer of Golden Gate Lodge, No. 204, I. O. O. F. He has been successful in many im- portant, intricate and closely contested cases in the civil and criminal practice of law, and particularly in probate and mining cases, and in the adjustment of claims. He has a client- age composed of some of the most responsi- ble people, located all over the Pacific slope. WILLIAM A. JOHNSTON. William Allen Johnston was born in San Jose, Gal., Septemlaer 29, 1856, of parents who had braved the dangers and privations of crossing the plains in the early days. He re- ceived his early education in the public schools of San Jose, and graduated from the ll^niver- sity of the Pacific in June, 1876. receiving the degree of bachelor of arts, and afterwards that of master of arts from the same institution. He studied law in the law department of the m 1878, and was admitted to the bar in the States of Michigan and California in the same year, being then twenty-one years old. Enter- ing upon the practice of the law in San Jose, Gal., he soon became associated in business with the Hon. Thomas H. Laine, who at one time was State senator, and a member of the constitutional convention of 1879, one of the foremost lawyers and orators of the State, and the Hon. John H. Moore, at one time County Judge, the firm name being Moore. Laine & Johnston. This firm having a large and select clientage, offered opportunities not always en- joyed by those just setting out in the practice of the profession. These Mr. Johnston recog- nized, and working early and late, rose rapidlj at the bar, appearing in a number of cases fam- ous in the history of his county. Too zealous application to his work, however, told upon his eyes, and operations upon them proving un- successful, he was compelled in the spring of 1883 to abandon the practice for a season in the hope of relief. In January, 1884, he again formed a partnership with the Hon. Thomas H. Laine, the firm name being Laine & John- ston, but his eyes again failed him, and he pur- chased an orchard home in the country, to which he retired in the winter of 1884. In 1890 he had so far recovered that he again, at the solicitation of wealthy clients who sought him out in his coimtry home, entered upon the practice of the law, which he has since contin- uously followed. Mr. Johnston has not sought the theatrical part of the profession, and. although at an earlier period he appeared in some noted crim- inal cases, yet for years he has devoted him- self exclusively to the civil side of the prac- tice. He is attorney for several large corpora- tions, and has a select and wealthy clientage. ALBERT F. JONES. AllKTt F. Jones, of the bar of Butte county, has practiced conlinuously at Oroville since •'ffln^. University of Michigan at Ann Arbor, under Judge Thomas M. Cooley, who was then its dean, receiving the degree of bachelor of laws the I St day of January, 1880. Mr. Jones is a native of Colusa county, California, where he was born on the I4lh day of February, 1858, 878. History of the Bench and Bar of California. His father, George F. Jones, at that time was engagea in the cattle business, and in the fol- lowing year was elected sheriff of Colusa count)', an office which he filled for four years. A. F. Jones was educated in the common schools of Colusa county until the year 1864, when he removed to Chico, in Butte county, where he attended the public schools when not engaged in clerking. In 1884 he attended the Golden Gate Academy, and thereafter Univer- sity Mound College, at San Francisco, from whence he entered Vale University, at New Haven. Conn. He graduated from the law department of Yale in 1879. and was then ad- mitted to practice in the courts of Connecti- cut. In July, 1879, he was admitted to prac- tice in the Supreme Court of California, and in 1885 to the United States Circuit and Dis- trict Courts. Mr. Jones was married in 1881, and has a family of three children. In the early days of his practice he took quite an interest in the politics of Butte county and of the State. He was elected district attorney in 1882. and served two years. He was elected senator of the fourth district in 1885, and served during two sessions of the legislature, being chair- man of the committee on State prisons at the first session, and chairman of the judiciary committee in the senate in the session of 1888. Since that time he has given his attention almost entirely to the practice of his profes- sion, paying none to politics except to at- tend State conventions, and devoting a short period at times to public speaking. From the beginning of his professional career, Mr. Jones has been very successful, and has a large and remunerative practice, with a clientage not only in Butte county, but extending throughout California and in ad- joining States. In addition to his professional matters, he has been prominently connected with busi- ness enterprises in the community in which he resides, and has found time to attend to fraternal affairs, being a past grand president of N. S. G. W., an officer of the grand lodge of the I. O. O. F.. and a member of the Masonic Order. \VILLIA:\I H. JORDAN. Mr. Jordan, speaker of the assembly in 1887. was born in Cincinnati, Ohio, on the 3d of September. 184Q. His father was a carpen- ter and farmer. The family has been in Amer- ica since 1630, when its progenitor in this country, Robert Jordan, a clerg>man of the Church of England, settled in Portland, Me. Mr. Jordan came with his father and family to California in 1859, driving an ox team across the plains, and walking most of the journey. They settled on the Sacramento river, near Red Bluff, and our friend, then ten years old. passed his first winter in the State in driving, an ox team with lumber to a point on the river for shipment. The great flood of the winter following C 1860-61) de- stroyed his father's property. His mother, too, had" died, and father and son removed to San Jose. The boy there began making his own way in life, setting out alone in quest of the employment most familiar to him. He found it on a farm near Pescadero. After a few years, when he became fifteen, he went to Oak- land, with the purpose of getting an educa- tion. He had accumulated by ^ his work on the farm $185. Getting the place of janitor in the Brayton school, and that of sexton in the First Congregational Church, he entered the first-named institution as a student. He had been there about one year when he resolved to make an effort to enter the State Univer- sity, which was then just being nut into work- ing order on its permanent site at Berkeley. When he nresented himself there he heard the regents discussing a proposition to charge stu- dents an annual fee of $100. There was a di- vision of sentiment, and one regent declared his opinion that any young man who could noi afford to pay $100 a year for his education was not worth educating. But just then, while his application was pending, he was, through the kind intervention of a friend, invited by a benevolent gentleman of Norwich, Connecti- cut, to go thither and live, and attend the Free Academy there. Accepting the offer, he attended that acadeiny for one year. He then entered Vale College. This was in 1871. Mr. Jordan remained at Vale but two years, so that his education, as far as systematic study in the schools is concerned, is compre- hended in two years at Brayton in Oakland, a year at the Norwich Free Academy and a year at Yale. His withdrawal from Yale was enforced by failing health. Returning to California in the fall of 1873, Mr. Jordan went into business at Oakland, organizing and managing the Real Estate Un- ion there, and afterwards the Oakland Woolen Mills. His relations with the public-spirited capitalist, Mr. .A.nthony Chabot, were such that he obtained from that gentleman the donation for the astronomical observatory, and under a commission from Mr. Chabot. he visited the Eastern states and secured the glasses for the telescope, an eight-inch refractor made by Clark. He was twice elected a member of the board of education of the city of Oak- land, and served as such for four years, 1881- 85. Mr. Jordan was first elected to the assembly from Alameda county, in the fall of 1884. Two years later he was re-elected, and was chosen sneaker. He was the unanimous choice of the Republican caucus, and was elected speaker by a majority of one vote, that being the strength of his narty in the house: and he presided much of the session over a Demo- cratic body. He maintained himself through the session with great dignity and capacity, there being no whisper against the correctness of his rul- ings. It fell to him at one time to publicly reprimand one of the assembly clerks for at- tempting to alter the position of bills upon the file This he did by order of the house, and with excellent judgment. At the close of the session the members, ps a delicate mark of their personal esteem for him. i>rcsented Johnstone Jones History of the Bench and Bar of California. 81^1 his wife with a magnificent pair of solitaire diamond earrings, and himself with a magnifi- cent solid silver tea service. By virtue of his office of speaker, Mr. Jor- dan held a seat in the board of regents of the State University for the years 1887-88. We have heard him speak of the thought that was uppermost in his mind, when he first sat in that learned body. What was it ? It was the remark made, some sixteen years before, by a regent in whose seat Mr. Jordan now rested, that a young man who could not af- ford to pay $100 a year for an education was not worth educating. Mr. Jordan was the first Grand Master Workman of the A. O. U. W. in California, and held the office a second term. He was Supreme Master Workman of this great order for the year 1888, the jurisdiction extending over the United States and Canada. He then made a protracted tour of both countries in the interest of the order named. It was while returning from this circuit of visitation, and at Cincinnati, in 1888. that he learned that the faculty of Yale College had just given him the degree of Master of Arts. His two years at Yale did not entitle him to this distinction, under the rules, but it had been conferred upon him at the request of his class. Mr. Jordan has been practicing in San Fran- cisco since July, 1885. JOHNSTONE JONES. General Jones was born at Hillsboro, Or- ange county, North Carolina, September 26, 1848. His father was Cadwallader Jones, who was a prominent lawyer and politician, and during the Civil War colonel of the Twelfth South Carolina Regiment. His mother was Annie Isabella Iredell, daughter of Governor and United States Senator James Iredell, and granddaughter of James Iredell, one of the Associate Justices of the Supreme Court of the United States, appointed by President George Washington. On his father's side. General Jones is lineally descended from Peter Jones, who founded the city of Petersburg, Virginia, and later Major Cadwallader Jones, who served in Washing- ton's army as a cavalry officer, and also on the stafi^ of General Lafayette. On his mother's side, he is lineally descended from General Ireton, who married the sister of Oliver Crom- well, and commanded Cromwell's army, and also, from John Alden and Priscilla Mullen, and more remotely from Sir Cullo O'Neil, the standard-bearer of King Robert de Bruce of Scotland. Ihe General was educated at the Hillsboro, North Carolina. Military Academy, in 1862. and the South Carolina Military .\cademy. Columbia. South Carolina, 1864. In November, 1864. at the age of sixteen years, he entered the service of the Confed- erate states, as a volunteer in White's Bat- talion. South Carolina Cadets. He served in Elliot's Brigade of Hardee's army, luitil the surrender. He commenced business life in 1865 as clerk in a country store. Afterwards Ire es- tablished and edited a country weekly at Rock Hill, South Carolina, and later owned and edited the Charlotte, North Carolina. Ob- server, a daily newspaper, from 1871 to 1874. He was secretary of the North Carolina state senate in 1874; secretary of the consti- tutional convention of North Carolina in 1875; representative of Buncombe county in the leg- islature of 1885, and for twelve years, from 1877 to 1889, was adjutant-general of North Carolina, having been successively appointed by three Governors — Zebulon B. Yance, Thomas J. Jarvis and Alfred H. Scales. He took an active part in national guard matters during all the period of his incum- bency of the office of adjutant-general, and was vice-president of the National Guard As- sociation of the United States for a number of years. Owing to the ill health of his wife (nee Elizabeth W. Miller of Wilmington. North Carolina, to whom he was married in 1873) he removed to San Diego, California, in Aug- ust, 1889, and entered upon the practice of the law in partnership with James E. Wadham, a prominent young attorney of the San Diego bar. At the general election in November, 1890, the year following his arrival in San Diego, he was elected district attorney of San Diego county. On November i, 1893, he removed to Los Angeles, where he has been engaged in the practice of the law ever since. In 1896 he was nominated by the Democrats, Silver Republicans, Populists and Labor Party for the State senate from the Thirty-seventh senatorial district, and was defeated "bv Hon. R .N. Bulla. In 1898 the General came out for the Re- , publican ticket, taking the stump for Gage for ' Governor and Waters for congress. He be- lieves in the policy of expansion, and voted for President McKTnley in lyoo. In 1899 he was appointed assistant district attorney of Los Angeles couiuy by Hon. J. C. Rives, district attorney, which office he still holds. (ieneral Jones acquired his legal education while serving as deputy clerk of the Supreme Court of North Carolina, in 1868, 1869, 1870. In his twentieth year he was admitted to the bar in his native state, in i860. He was ad- mitted to the bar of the Supreme Court of the United Slates December 17, 1885; to tlie bar of San Diego, on motion of E. W. Britt. Sep- tember II. i88(j: to the bar of the Supreme Court of California. October 19. lS()i. and to the L'liited States District Court. March u. 18.,.'. When the war with Sp.iin opened General Jones, in ten days, raised a full regiment of men in Los .\ngeles and adjoining counties, and was elected its colonel. He otTered him- self and the regiment to the government, but, not being needed, they were not nni^tered iiUo ser\ice. 882 History of the Bench and Bar of California. ALBERT H. JUDSON. Albert 11. Judson was t)i)rn in Portland, Chautaiiqna count}-. New York, in September, 1838. He received an academic education at P"redonia, in that .state, and for a time fol- lowed teaching and civil engineering, but sub- sequently studied law and was admitted to the bar by the Supreme Court of his native state in May, 1861. He soon after commenced practice in Fredonia, and has l)een in active practice over thirty years. He came to California in 1871, settling first at San Leandro, the county seat of Alameda county, where he practiced law and at the same time had editorial charge of the Alameda County Ga::ctte. He moved to Los Angeles in 1873. Here he opened a law office, and soon organized an abstract and title company, un- der the firm name of Judson & Fleming, which was shortly succeeded by that of Jud- son & Gillette. Subsequently Mr. F. A. Gib- son, now cashier of the First National Bank of Los Angeles, became a member of the firm, which now took the name of Judson, Gillette & Gibson, which became a leading con- cern in Southern California in all matters relating to abstracts and certificates of title. Mr. Judson inaugurated the practice of issuing certificates of title in place of abstracts and opinions thereon. Now the certificates of title are in almost exclusive use. The firm of Jud- son, Gillette & Gibson did a large and profit- able business for many years, Mr. Judson re- tiring from the firm in 1885, but remaining as its legal adviser until 1887. He then abandoned the law for a time in order that he might give his entire attention to the manage- ment of several corporate enterprises of which he was president, and in which he was largely interested, notably, the Los Angeles Packing Company, the Los Angeles Cemetery Coinpany, the Hemet Land Company, the Hemet Water Company, and many others. He was at one period a heavy operator in real estate in Southern California, and his name was a very frequent one on the records of Los Angeles and adjoining counties for many years. Mr. Judson was in 1881 a candidate on the Republican ticket for Superior Judge, and, though he ran largely ahead of his ticket, he failed to overcome the heavy Democratic ma- jority of those days. Mr. Judson was also a candidate in 1879 for city attorney of Los Angeles. Ijut the entire Rcpul)lican ticket was beaten. The title business heretofore alluded to was subsequently merged in what is now known as the Title Insurance and Trust Co. Mr. Judson has never been an active politician. The following is taken from a newspaper pulj lished in Los Angeles city at the time Mr. Judson was a candidate for Superior Judge : "As a lawyer Mr. Judson is held in high estimation "bv a numerous clientage who value a well-considered opinion. His private life is as pure and blameless as his business career has been honorable and useful. He has qual- ities that admirably fit him for the bench, .among thcni a broad, liberal and expansive mind, a judicial habit of thought and a thor- ough knowledge of the law. Mr. Judson has always, when in practice, given special at- tention to the laws bearing on real estate ti- tles, water rights, mines and corporations." Mr. Judson was married in 1867 to Sarah Fairman, of Elmira, N. Y., by whom he had seven children. Three of them survive. He is in religion independent, with a leaning to- wards Unitarianism. FRANK P. KELLY. Mr. Kelly was born January 7th, 1854, in the city of Philadelphia, Pa. He began life as an errand boy in H. G. Leisenring's printing office in that city. He then began to learn the I)rinter's trade. He moved to Sacramento, Cal., in March, 1867. There he finished the trade in H. S. Crocker's printing office. In Sacramento he engaged in literary pursuits. He was a reporter at the age of twenty. Re- moving to Tehama he became owner and ed- itor of the Tehama Tocsin, from 1878 to 1882. He moved to Santa Barbara in 1883 and became editor of the Santa Barbara Press. In the next year he was in Los Angeles managing the Daily Evening Republican. He was man- aging editor of the Evening Express of Los Angeles later in 1884. Mr. Kelly was admitted to practice law in Los Angeles in September, 1884. He was as- sistant city attorney of that city under Hon. J. W. McKinley, 1885-6. He was elected Dis- trict Attorney in November, 1888, for Los Angeles counts and served with distinction for the term of two years. There were 270 convicts sent to the different State prisons during his term, a greater number than ever before or since in the same length of time. Mr. Kelly is well and favorably known as an eloquent and forcible speaker, both on the rostrum and before a jury. He moved to San Francisco in January, 180^ to take the position of attorney in all criminal cases for the South- History of the Bench and Bar of California. 883 ern Pacific Company and the Market Street Railway Company in the City and County of San Francisco. This position he still holds. He is a man of energy and a large part of his success in life is due to his ability to act quickly and close up the business entrusted to him. A more extended notice of Mr. Kelly, with a fine portrait, appears in the "Ilhistrated His- tory of Los Angeles County" (1889). WILLIAM T. KENDRICK. William T. Kendrick, of the Los Angeles bar, was born in Palestine, Texas, June 11, 1854. He was educated in Kentucky Univer- sity, at Lexington, Ky. He was admitted to practice in the Supreme Court of California in 1879, and at once began the practice of the law in Oakland. He opened an office in Los Angeles in 1882, and since that time has continued there in the active practice of his profession. Many of the most import- ant cases in that and adjoining counties have been conducted by him, as appears from the Supreme Court reports of this State. He is a man of family, having a wife and six children. Mr. Kendrick was in partnership with that old veteran of the Los Angeles bar, J, B. Hollaway, now retired, for eieht years. He is at present associated with W. S. Knott, a nephew of ex-Governor J. Procter Knott, of Kentucky. S. V. LANDT. Sanford V. Landt was born in Herkimer county. New York. The first thirteen years of his life were spent on his father's farm there, with plenty of work, and little time at the common country school. The following year, by the death of his father, he was thrown upon his own resources, and with his earnings as a farm laborer during the summer months, he attended school during the winter. At the age of sixteen years he secured the necessary certificate of qualification, and for the four following months taught school and supple- mented his salary as teacher by what he could earn at farm labor in harvest time. He thus covered the necessary exi)ensc of his fall and spring studies at Fort Edward Institute, in Washington county, New York. The next four years he studied law in the city of Al- bany as a student in the office of Hon. Lyman Tremain and Rufus W. Pcckham, the latter now Justice of the United States Supreme Court, and at the Albany Law School. He was admitted to practice in New York state in 1865. In 1867 he removed to the slate of Iowa, locating at Tipton, in Cedar county, and became law partner of the Hon. William P. Wolf. There lie continued in the active pr;u-- tice of his profession as member of the well- known law firm of Wolf & Landt until 1887, when he removed to Los Angeles, California. Although he never sought political position. Mr. Landt held the nf'fice of mayor of the eil.\- of his residence in Iowa, being elected to that place in 1876 by a large majority. He was elected in 1877 and again in 1878, the two last terms b\' unanimous vote of the people, no op- position candidate being put in nomination by either party. He was, for the ten last years of his residence in Iowa, chairman of the county central commitee of his party (Re- publican). In September, 1868, Mr. Landt married Miss Bertha Brouse, first cousin of Bishop Albert Cameron of Canada. Mrs. Landt was well known in Los Angeles, as well as at her Iowa home, for her noble deeds of charity, as well as church work. She was one of the first to assist in the work of organizing . St. John's Parish, Los Angeles, its incorporation being accomplished at her residence. She died in that city. May .31. 1897, leaving a son, Edward B. Landt, and a daughter, Katherine C. Landt, both still residing with their father at 2131 Es- trella avenue^ E. O. LARKINS. Elwood 01i\er Larkins has been actively engaged in the practice of law since 1886, residing at Visalia. His professional business has comprised much of the heavy litigation of the San Joaquin Valley, although confined mostlv to civil cases. His specialties are water rights and land titles. Of late he has be(;n occupied with cases in the State and Federal courts involving title to pelroleiun oil locations. Although he has devoted him- self industriously to his profession, he has taken considerable interest in politics, being an enthusiastic Rei)ublican, and having stumped the northern part of this slate for Senator (ico. C. Perkins when he was a candidate for Governor. lie has taken part in nearly every campaign since that time, m.iking a harxl fight for President McKmlev in i8<)6- He is a director in the Hank of \'isalia. and has considerable business interests in and around thai city. At the last Republican state convention, held at Sacramento in 1898, lie pl.iced in nomination the Hon. M J, Wrigiit 884 History of the Bench and Bar of California. for Surveyor-General. He has served in the state conventions on important committees at various sessions. He is a Mason and Odd Fel- low in high standing, and takes great interest in educational affairs, having been recently ap- pointed one of the Educational Commissioners by Benjamin Ide Wheeler, David Starr Jor- dan and the Superintendent of Public In- struction, to meet at San Francisco for the discussion of educational matters of concern in the State. Mr. Larkins was born in East Liverpool, Ohio, on December i6, 1854: graduated at the State Normal School at Kirksville, Mo., in 1876; came to California in 1876, and en- gaged in the profession of teaching for several years, during which time he was principal of several important schools. He is the son of J. B. Larkins, whose father married Mary Oliver, a native of Pennsylvania, and a rela- tive of Oliver T. Morton. William Larkins, grandfather of J. B. Larkins came from England at an early day. and fought on the American side in the War of 1812. In 1880 Elwood O. Larkins (or E. O. Larkins, as he is commonly called) married Miss Sallie C. Calloway, of Waverly, Mo., who is a de- scendant of the Boone family of Kentuckv. and who is closely related to the Hardins of that state. Her father's sister married a cousin of Robert E. Lee. The Sebring Bros., of Sebring, Ohio, who are extensiveh- en- gaged, in the manufacture of chinaware, fa- mous throughout the United States, are cousins of the subject of this sketch. For a short time Mr. Larkins was engaged in the practice of law with Hon. J. F. Wharton, in Fresno, and later for many years with the Hon. Tipton Lindsey of Visalia. but he is now alone in the practice, his former partners both being dead. ARTHUR L. LEVINSKY. .\rthur L. Levinsky was born in Jackson, Amador county. California, on July 9th, 1856. He was educated in this State, in the public schools, and thereafter entered info commer- cial life, first as book-keeper, and then as one of California's earliest commercial travellers. In 1882 he began the study of law and was admitted to the Supreme Court of this State on August 5th. 1885. Since that time he has been fngaged in much of the most important litigation before our courts, both State and Federal : and in this connection, it is most apparent that Mr. Levinsky has never followed well-beaten tracks, but rather, has opened up many new legal avenues in his practice, varied as it is. including commercial, criminal, pro- bate and corporation law, in all of which he has been most successful. Mr. Levinsky was the first attorney in our State who obtained a decision of our Supreme Court declaring the difference between an "elector" and a "voter." which remained* un- determined for many years, until the proposi- tion was argued by him. and which has been a much-quoted decision since that time. He for many years was a member of the well-known law firm of Louttit, Woods & Levinsky, and since January. 1894, has been one of the members of the firm of Woods & Levinsky, who are the legal representatives of many of the largest interests in this State, including the Alameda & San Joaquin Rail- road Company, the Sierra Railroad Company of California, the California Navigation and Improvement Company. P. A. Buell & Com- pany. Stockton Electric Railroad Company, the Standard Electric Company of California, the Stockton Savings Bank, the Santa Fe Pacific Railway Company, and many other large local interests in San Joaquin county; and he is also the local representative of Carter, Llnghes & Dwight. of New York City. His business is not confined solely to the county of San Joaquin, but extends through- out the entire State. He is courageous, faith- ful and zealous in behalf of his clients at all times, though always conceding to his op- ponents their just dues. It is well known that when he undertakes a case or represents any w interest, large or small, so long as his cli- ent's demand is just, he can be found stand- ing by his client to the end of litigation, whether his client is possessed of means or not, strict attention to business and tenacity of purpose being his motto. While he has had many opportunities, polit- ically speaking, with the exception of having been city attorney of the city of Stockton, he has never allowed his name to be used for office, though his voice is often heard in the furtherance of the principles of the Republican party, and he is well and most favorably known throughout California. Of Mr. Levinsky it may well be said that he holds a high place in the respect of his fellow citizens as a worthy adviser and coun- sellor at law. and as a strictly honorable, pub- lic-spirited citizen whose efforts and ability can always be depended upon for the promo- tion of the best interests of San Joaquin county, and California in general. Bradner W, L ee History of the Bench and Bar of California. 887 BRADxXER W. LEE. Bradncr Wells Lee is a native of Living- ston county. New York. He was born May 4, 1850. His father was David Richard Lee. and his mother was Elizabeth Northruni Wells. He is descended through his father from Nathaniel Lee, who settled at Fishkill, New York, in 1725, whose eldest son, Thomas, .was a distinguished officer in the Revolution- ary War, the latter's sons being commissioned officers in the War of 1812. Through his mother, Mr. Lee comes from Hugh Welles, who was one of the first settlers of Hart- ford, Connecticut. When Hon. G. Wiley Wells, recently of Los Angeles, was United States attorney for the northern district of Mississippi, Mr. Lee, who is that gentleman's nephew, began the study of law in his office, in 1871. He came to California and, settled at Los Angeles, in iH/g, and was admitted to the bar by the Supreme Court of this State. He became .i partner of ex-Judge Brunson and of his uncle just mentioned, under the firm name of Brun- son, Wells & Lee. When Judge Brunson re- tired, Walter Van Dyke, now Associate Jus- tice of the Supreme Court, took his place, the firm being Wells, Van Dyke & Lee. In 1896 he became associated with Hon. John D. Works, under the name of Works & Lee. This firm, which still exists, has been a lead- ing one and very prosperous ever since its for- mation. The firm has in its office the well-selected library of Colonel G. W. Wells, of over 6,000 volumes. Mr. Lee, who has come to be an experienced lawyer in all kinds of cases, is devoted to his profession. I f he has had any specialties, they have been in the line of pro- bate and corporation law. He has never held office, but, in 1896, in 1898, and again in 1900, was chairman of the Republican county committee. He was elected by the legislature in 1897 one of the trustees of the Stale Library. He has belonged to the Los Angeles Chamber of Commerce since 1894, and a member of the law committee of that body. He is director and treasurer of the California Society of the Sons of the Rev- olution, a charter member, and now historian, of the Society of Colonial Wars in the State of California, and vice-commander of the Cal- ifornia Commandery of the Military Order of Foreign Wars of the United States; also, a member of the Jonathan Clnh. and (if tin- Mys- tic Shrine. Mr. Lee married Miss Helena l-'arrar at Philadelphia in 1883. Her father, now de- ceased, was Colonel William llumphrey I'ar- rar, of Washington, D. C, a iironiiiunt law yer of his time, who studied law with Daniel Webster and Caleb Gushing. They have two children, Bradner Wells Lee. Jr., and Ken yon Farrar Lee. Mr. Lee was urged by many of the iinmii nent attorneys at Los .\ngeles to accept the nomination for Su])erior Judge at the cani- paign of 1900, but declined, preferring his pri- vate practice to a place on the bench. T. L. LEWIS. Hon. T. L. Lewis, district attorney of San Diego county, was born on a small farm in Crawford county, Pennsylvania. When he was about two years of age his parents emi- grated to the then new State of Illinois and settled in McHenry county, about >ixty miles northwest of Chicago. His father was a farmer, and the son spent the earlier years of his life and until twenty-one on a farm. In 1863 his parents removed from Illinois to Iowa, making the trip across the country in covered wagons, and settled in Jasper county. Again, in 1869, they inovcd westward and lo- cated in Richardson county. Nebraska, on a farm. During the earlier years of his life our subject worked steadily on the home farm, attending the common public schools in winter for a period of three months each year. Upon reaching his majority, he was fortunate enough to secure a position as teacher of a common school in Nebraska near the home of his parents. After teaching a single term of three months, in 1872, he entered the Ne- braska State Normal School, then and now located at Peru. He had no means with which to pay his expenses at school, except what he earned by working in the harvest fields dur- ing vacations, and teaching in the public schools when his funds gave out. In this manner he finished a three years' course at the Normal School of Nebra.ska, graduating from that institution in June, 1877. The fol- lowing year he taught in the public schools of Nebraska, but concluding not to follow teach- ing as a profession, he, in the fall of 1878. entered the law department of the Iowa State University at Iowa City. From that institu- tion he was graduated in June. 1879. After receiving his diploma and being admitted to practice in the Supreme Court of Iowa and in the Federal Courts, he returned to Ne- braska. On reaching Omaha in July, 1879. he found his finances reduced to the sum of seventy-five cents, and this, with his personal effects, constituted his entire i)r(>])erty. In order to replenish his ])urse he spent six weeks in working at manual labor in the harvest fields. In the fall of that year, 1870, he secured employment as a teacher in a village school in Douglas county, Nebraska. .After teaching for one year, he. in October. 1880, formed a law partnershii) with W. V.. Drury at Decatur in Burt county. Nebraska. .About one year later he removed to Oakland, in the same county, wliere he formed a partnership for the r>rac- lice of his jjr.ofession with W'.'itson Parrish. In the latter part of 1885 the partnership with Mr. Parrish was dissolveil by mutual consent, Mr. Parrish removing from the State of Ne- liraska. and Mr. Lewis continued the jiraclice 111' l.iw at 0.akl;ind until January. 1888. W'iiile engaged in the practice of his |>ro- fession at the last named place Mr. Lewis was. .It the general State election of 1884. elected Id re|iri'sent Hint and Washington counties in tile Nebraska State Senate. In l88<) he was elected prosecuting attorney of Riirt county. Nebraska, for a term of two years. but after serving one year he resigned the office and removed to California, and settled 888 History of the Bench and Bar of California. in San Diego, where he has ever since re- sided. Upon locating in San Diego in Janu- ary, 1888. he at once entered upon the prac- tice of the law, and has continued in active practice continuously since. He has served as deputy district attorney of San Diego county for a term of two years, and as deputy city attorney for the city of San Diego for a term of four years. At the general election in 1898 Mr. Lewis was elected district attorney of San Diego county for a term of four years, which office he is now holding. In his politics he has al- wavs been a Republican. On January 21st, 1886, he was married to Miss Mary Fullen. of Tckania. Burt county, Nebraska, and he has three children. He is domestic in his habits, and spends much of his time, out of office hours with his familv. MAX LOEWENTHAL. Max Loewenthal was born October 15. 1858, at Inowrazlav, Germany. He came to Cali- fornia in 1868. and received his early education in the public schools of Sacramento. He was graduated from the University of California, with the degree of A. B., in 1881 ; and from Hastings' College of the Law- in 1884. He was admitted to the bar in 1884, and practiced for two years in San Francisco. He located at Los Angeles in 1886, and has always prac- ticed there. Mr. Loewenthal's father and grandfather were rabbis of the Jewish church. His father was for eleven years at Sacramento in charge of the Jewish congregation, and the same period of time at San Jose. Mr. Loewenthal was married at Los Angeles in 1890, to Miss Laura Meyer, daughter of one of the oldest and most respected business men of that city. His family now consist of his wife and one child, a bov of nine years, named Paul. Mr. Loewenthal's practice has been of a gen- eral civil and corporation character. In 1890, when Mr. Loewenthal had been in practice in Los Angeles but a few years, he was nom- inated for Superior Judge by the Democrats and suffered defeat with the rest of his ticket. He is not a politician in any real sense, though he takes an active interest in affairs of state. EDWARD MARTIN. Mr. Martin is one of the highest-credited citizens of the most beautiful and resourceful county of Santa Cruz. He was born in Eng- land, his father being Dr. John Martin. He came to California in 1851. A picturesque incident of his life-record is his plowing the first furrow in the rich Pajaro valley. After- wards he had a bookstore and stationery busi- ness in Watsonville, and held the offices of notary public and postmaster. He there ac- quired a home and was united in marriage to Miss Emmeline Risdon, of New York. He has been living in Santa Cruz city since 1884, when he entered upon the office of county clerk, auditor and recorder. He held this by successive re-elections, until January i, 1899. He had been admitted to the bar by the Su- preme Court in September, 1898, and began the practice of law on leaving official life. He holds, by the appointment of United States District Judge DeHaven, the position of referee in bankruptcy. Mr. Martin was a member of the last con- stitutional convention, 1878. Mr. Martin is well versed in Latin, French and Spanish, and has written considerably in the line of historical sketches and humorous stories, some of which are preserved in the "History of Santa Cruz County," by E. S. Harrison (1892). Mr. and Mrs. Martin have a fine home on Camino del Rey, Santa Cruz. Their children are grown up — two sons and a daughter. C. C. McCOMAS. Charles Carroll McComas, the veteran pub- lic prosecutor of Los Angeles county, was born on his father's farm in Jasper county, Illinois, August 10, 1846. His parents died when he was a child. He was living in Decatur, Illinois, supporting himself bv work, when the Civil War opened, in 1861. In the follow- ing j'ear he enlisted in the One Hundred and Fitteenth Illinois Volunteer Infantry when he was not quite sixteen years old, and was mus- tered in as a corporal in Company F. He served to the close of the war, taking part in all of the many battles in which his regiment fought. His gallantry in action constantly at- tracted attention. After the battle of Resaca. in Northern Georgia, he was promoted to first sergeant, and later to first lieutenant. At Chickamauga he was in the hard fighting on Snodgrass Hill. Out of every hundred sol- diers on that field the killed and wounded numbered forty-nine. He was himself struck bv a minnie ball, and his life was saved by a piece of a dictionary which he had in his pocket. History of the Bench and Bar of California. R!^9 When the war was over the young soldier, then only nineteen, went to his home town, Decatur, and engaged in practice, at the same time pursuing the study of law. His reading was done at night. Afterwards he at- tended a course of law lectures at the Uni- versity of Michigan. He had won the close friendship of Colonel Jessse H. Moore, the commander of his regiment, and now Colonel Moore secured for hun a conhdcntial position in the office of Hugh Crea, a prominent law- yer, and under the latter's supervision he fin- ished his law studies. He was admitted to the bar m 1869, and began practice at Decatur. In 1870 he was elected state's attorney for four years. In November, 1870, he married a daugh- ter of Colonel Moore, who himself performed the marriage ceremony, being a minister of the Gospel. Colonel Moore, it may be added here, was also for years a member of congress from the Seventh Illinois district. Mr. McComas, at the end of his term as state's attorney, moved with his family to Larned, Kansas. He was Probate Judge of the county during the greater part of his residence there, but the con- dition of Kansas grew so destitute that he re- moved to New Mexico. Locating at Albu- querque, he was soon appointed prosecuting attorney for the Second Judicial district. He also served in the council, the upper house of the legislature, and was the author of a num- ber of bills, which are still on the books of that territory, among them being the public school law. in the fall of 1886 Judge McComas came to California, and settled permanently at Los Angeles, engaging in the practice of law. In 1889 he was appointed deputy district attorney of Los Angeles county. This position he still holds, having occupied it under every subse- quent Republican district attorney, and there has Deen only one Democratic district attorney during that period. As a public prosecutor, Judge McComas is distinguished for skill and general pro- ficiency. The Times of Los Angeles has de- clared him to be the ablest that the county has had. According to the Express, in November, 1899, he has convicted more criminals during his long service than any other officer on the Pacific Coast in a like period of time. He has been the subject of several public biogra- phies, and is represented as being untiring in his efforts to bring to justice violators oi the law. "Some of the cases brought before him," says one writer, "were as complicated and in- tricate as any ever presented to an official, but he proved himself fully equal to coping with them. * * Believing that a public office is a public trust, he has devoted liiniself, in the various offices held by him, to the faithful dis- charge of his duties, and his work has been successful. His record is one of which he and his many friends may well be proud." iac Judge's family consists of his wife and three children, the later being Miss Alice Beach McComas. Mrs. Clare McComas Har- ris, and Miss Carroll McComas. Miss Alice is one of the most accomplished of pianisles. Mrs. Harris is a fine vocalist. Miss Carroll is a successful vaudeville star, and a whistler of wonderful powers. She has been ottered a flattering London engagement for the present vear. A. M. McCOY. Mr. McCoy was born, in Clark county, Mis- souri, on June 9. 1852. He was one of six brothers, and was the son of Joseph McCoy, who was well and favorably known not only in Missouri, but also in other States. He was educated principally at Pleasant Hill Academy in his native county, and La Grange College and Christian University, in Lewis county. He graduated from the last named institution in 1874 \vith the degree of A. B.. and was accorded the honor of valedictorian of his class. He studied for one year as a post graduate in his alma mater, and then taught for one year the department of English Literature and history. He afterwards re- ceived the degree of master of arts from the same school. In 1874 Mr. McCoy came to California and located at Red Bluff, which has continued "to be his home. He taught for two years at this place, being the principal of the public schools. In the spring of 1878 he found his health very much impaired, and on this account he em- barked in the sheep business anfl sjjent a few years in the mountains .'ind foothills. Regain- ing Irs health he commenced the study of law among the tall ])ines and in the free air of the .Sierras, and afterwards, continueil the same in the oflice of Jackson Hatch, who was then at Red Bluff. lie was admitted to practice as an attorney in the spring of i88(). and he was in the fall of that year elected as district attorney of the county of Tehama. He was re-elected to the same office lor two successive terms, each time by an increased majority. Retiring from this office in i8().?, he has devoted himself very industriously to general practice. He has been very successful in his profession and has often been called to other counties to take charge of important litigation. He has always been a staunch Democrat in 890 History of the Bench and Bar of California. politics and has taken a prominent part for his party in campaigns, being an earnest sup- porter of William J. Bryan and the principles of which he is pre-eminently the exponent. Mr. McCoy was married in 1884 to Miss Hattie Muth. This union has been blessed with three bright children. He is the owner of one of the most comfortable homes in Red Bluff. He is a :\Iason and Odd Fellow, and he is also a zealous and prominent member of the Christian church. He holds a very high place in the good will of the comnninity where he has lived so long. J. \v.\DE McDonald. J. Wade McDonald, of San Diego, has long occupied a leading place at the bar of the State. He is a native of Ohio, and as a boy of sixteen served in the Union Army during the Civil War until disabled by wounds. At the close of the war he settled at Huntsville. Ala- bama, and studied law under General L. P. Walker, who was the first secretary of war of the Confederate States. He took an active part in politics in Ala- bama, as a Republican ; was assistant secretary of the Alabama ' senate, and Quarter-master 'i!<^BES^jii£,t .. General on the staff of William H. Smith, the first Republican Governor; and by his ability as an organizer and stump-speaker contributed very largely to the carrying of the State for General Grant in 1868. He moved to Kansas in 1872, and in that year followed Horace Greeley into the Demo- cratic party. While residing in Kansas he served one term on the bench and one term as prosecuting attorney. He was the Demo- cratic candidate for Congress in the third district of Kansas in 1880, and declined the same party's nomination for Governor in 1886. Judge McDonald came to California and set- tled in San Diego in May, 1887, when about 40 years of age. At once he took rank among the ablest lawyers. He is a most fascinating and eloquent orator. The cases of San Diego Land and Town Company vs. Ncale, 78 Cal. t)3 •,Coii.'dcn vs. Pacific Coast Stca)nship Co., 94 Cal. 470; Consolidated National Bank vs. Pacific Coast Stca)nsliit} Co., 95 Cal. i ; Story and IsluiinCo. Z's. Story, 100 Cal. 30-41; Burn- ham vs. Stone, 101 Cal. 164; City of San Diego vs. Higgins, 115 Cal. 170; Thomas vs. Pacific Beach Co., 115 Cal. 136, and People vs. Jones, 123 Cal. 299, all settle new and important ques- tions of principle and practice and were all liersonally briefed for the winning parties by Judge McDonald. They are shining trophies of his legal "bow and spear." When the national Democratic convention in 1896 assailed President Cleveland for stopping the Chicago riot and arraigned the United States Courts for interposing the process of injunction as a protection to life, property and the public peace. Judge McDonald went back to the Republican party, and in 1898 made a vigorous campaign in support of the State ticket. His work was mainly in San Fran- cisco, and its character and effect are shown by the following extract which we have been permitted to make from a letter addressed him by the chairman of the Republican State central committee, under date of November 1 2th, 1898, to-wit: "Hon. J. Wade McDonald, San Diego, Cal. : — "My Dear Sir : I desire to assure you of my sincere appreciation of the eminent ser- vices rendered by you in the past campaign, services from which sprung the most mag- nificent victory ever achieved in the history of California politics. "On behalf of this committee, therefore, I desire to gratefully acknowledge the beneficent results due to your oratorical ability, and the unanswerable arguments you presented, in favor of principle and patriotism, all of which has enabled us to accomplish our glorious victory." Judge McDonald is the original "Prophet of Expansion," having been the first man in the United States to declare for it. from a public rostrum upon a notable occasion. He was the orator at the "Memorial I^ay" exer- cises held at San Diego on the 30th of May, 1898. and in the course of his speech, said: "I believe that I voice the sentiment of every old soldier. Union or Confederate, within the limits of the United States today, and I be- lieve also of the great mass of patriotic citi- zens of our countrv, when I say that since we have been forced to war. since we have been compelled to offer upon the shrine of the mis- taken pride of Spain the lifeblood and treasure of our country, not one foot of the soil that we take from her by armed force during this war shall ever be returned. No! That which wc take with the strong hand of war we will retain ; and we shall not ask permission from czar, kaiser or potentate to do so." And in his campaign for the Republican ticket in 1898 he eschewed personal and State •"olitics entirely, and made his appeal to the people exclusively upon the grounds of na- tional expansion. History of the Bench and Bar of California. 891 J. P. Mcelroy. James P. McElroy was born at St. Johns, New Brunswick, August 30, 1835, the son of Edward and Rose (McKenna) McElroy, both of Irish descent. James was educated at Morrisville, Vermont. He studied law in the office of Thomas Gleed, of that place, for three years, and was admitted to the bar m 1858. He practiced law until 1862, when he enlisted in the Ninth Regiment, Vermont Vol- unteers. He served three years, being mus- tered out at the close of the war, in 1865. He then resumed his law practice in Vermont, and followed it until 1872. Believing that in the West he would find a broader field for the exercise of his talents, he settled in Chicago, where he practiced his profession with suc- cess. In 1887, on account of his health, he came to Oakland, Cal., where he built up a good and growing practice. He was a mem- ber of the G. A. R. since its organization. In 1896 he was colonel of the Army and Navy League of Alameda county, and lieutenant- colonel of the State Army and Navy League. In the war, his command operated for a considerable time in the Shenandoah Valley, ui-.der General Pope. From there it went to North Carolina, where it was under General Butler. It finally brought up in front of Richmond, and took part in the surrender there. He was in many hotly contested actions, beginning with Winchester and Har- per's Ferry. After crossing the James River it was almost continuous fighting from Sep- tember until the following April, 1865, when Richmond fell. In 1862 Mr. McElroy was married to Miss Amy Carpenter, a daughter of Josiah Car- penter, of Waterville, Vermont. His wife is of old Puritan stock, the founder of the fam- ily having, it is believed, come over in the Mayflower. Mrs. McElroy is a cousin of the late Senator Matt Carpenter, of Wisconsin, and of State Senator Richard B. Carpenter, a prominent citizen of Los Angeles. Two chil- dren blessed their union, Edward J., and Charles B. The latter died in 1886 in Chi- cago. James P. McElroy died very suddenly of heart trouble at his residence in Piedmont, August 8th, 1900. aged sixty-four years and eleven months. Mrs. McElroy is residing in San Francisco. FRANK McGOWAN. Frank McGowan was born at Steilacoom. Washington, in i860. He studied law in Hum- boldt county, and was admitted to the bar of the Supreme Court in 1883. He practiced lav.- at Eureka for some thirteen years. In the presidential campaigns of 1880 and 1884, Mr. McGowan l)ecame noted as a public speaker on the Republican side, and since has been active in national and State cam- paigns. He is a brilliant and magnetic speaker. Hc' served two terms in the senate, from January, 1889, to March, 1897, representing Humboldt and Del Norte counties. He re- moved to San Francisco in 1896, and has since been in good practice there. He was noni- ipated presidential elector by the Republican state convention at Santa Cruz in September, 1900. and was elected Xo this honorable place. Mr. McGowan was united in marriage to Lena Bluni on the 28th day of September, J 889, and has two children. E. W. McGRAW lulward Walker McGraw was born in De- troit, Michigan, on September 4, 1837. His father was a native of Orange county, New York, and was born in i8oy, but moved to Michigan, then in the very far West, in 1830. His mother was born in Providence, Rhode Island. His ancestors on the father's side lived in the north of Ireland, county Artnagh. On the mother's side they were Puritans and Quakers of New England. Mr. McGraw was graduated from the Uni- versity of Michigan with the degree of A. B. in 1859. He received the degree of A. M. in 1862. In the fall of 1859 he attended the Albany Law School, and in i860 the law school of the University of Michigan. He was admitted to the bar in Detroit. Michigan, in October, i860, and immediately started for Portland, Oregon, via the Panama route. Arriving in Portland in December, i860, he practiced law there until November ist, 1864. Mr. McGraw was United States district attor- ney for Oregon in 1862-4. and city attorney of Portland, 1863-64. In November, i8(u. he went to llonohilu. and spent the winter oi 1864-q. In .April. 18O5, lu- went lo San I""ran- cisco. ami thence on horseback to Idaho, arriv- ing at Idaho City in June. 1865. Mo practiced law there until May. i8()7. Taking horse again he proceeded to I-'ort Benton, tlience down the Missouri by steamer to St. Louis, arriving there in September, 1867. He spent a couple of months in the F.ast. and. in December, started from New ^'ork for San Francisco via Nicaragua, arriving at .San I'raneisco on Jan- uary 1st. l8()8. He now ended his travels, and has ever since been practicing law in San Francisco. 892 History of the Bench and Bar of California. He married on June 4, 1869, Miss Sarah Ellen Tichenor, of Port Orford, Oregon, and has had thirteen children, nine of whom are living. JAMES McLACHLAN. Hon. James McLachlan, a member of the national house of representatives from the Sixth district of California, was born in Scot- land in 1852. His parents brought him with them to the United States three jears later, and settled in Tompkins county. New York, engaging in farming. The son was raised on the farm, and attended the district school, the while preparing himself for college. He was graduated from Hamilton College in 1878, studied law, and in 1880 was admitted to the bar of the Supreme Court of New York. In 1881 he located at Ithaca, New York, where he practiced law until 1888. In the latter year he came to California, and settled at Pas- adena, in Los Angeles county. In 1890 he was elected district attorney of that county, on the Republican ticket. In this connection he is referred to in the sketch of his friend, Superior Judge York, who at that time be- came his assistant. In November, 1894, he was elected, as a Republican, a representative in the Fifty-fourth congress, and served the term from March, 1895, to March, 1897. Mr. McLachlan. as well as Senator White, did able and effective work to secure for Southern California an appropriation for San Pedro harbor, which was so stubbornly contested by various financial corporations with interests elsewhere. Since 1897 Mr. McLachlan has been follow- ing his profession in Los Angeles city. He was returned to congress in 1900 for the two years' term, beginning March 4. 1901, by a great majority. Mr. McLachlan is married and has several children. He owns his home in Pasadena, and is in good circumstances. He has be- longed to the Los Angeles Chamber of Com- merce since 1891, and is in hearty sympathy with the public spirit of that wide-awake and progressive institution. ROBERT L. McKEE. Mr. McKee was born in Panola. Panola county. Mississippi. He came to Oakland. California, in the early fifties, as a child. He went to public and private schools in Oak- land until he entered the College of California, which afterward became merged into the Uni- versity of California. He was graduated from the University of California in the first class that ever graduated from that university. Shortly thereafter he went to the University of Virginia, to study law. remaining one year. He received a certificate of proficiency June 29th. 1871. Returning to Oakland he went into a law office in San Francisco. He after- wards served as deputy county clerk in the City and County of San Francisco under the late Colonel William Harney. After remain- ing there a year and more he resigned, was admitted to the bar by the District Court of the Twelfth Judicial District, and proceeded to practice in Oakland. He was admitted to the bar of the Supreme Court of California in 1875. While practicing in Oakland he served as deputy district attorney for Alameda county and afterwards as court commissioner. He went to Oregon in 1882, and practiced law in Portland, being associted with the late Judge Shattuck. While there he was nomin- ated for Circuit Judge for the county of Mult- nomah, unknown to himself; but after being notified he had to decline the honor, as he had not been in the state a sufficient length of time to be eligible to the office. After a few years he returned to Oakland, where he is practicing at present. Mr. McKee is a Democrat. He ran for office but once ; it was for district attorney for Alameda count}', and, as was to be ex- pected, the whole ticket was defeated. He has taken the stump for his party on many oc- casions as well as for his friends in different counties, both in this State and Oregon. THOMAS McNULTA. Thomas McNulta was born October 8, 1845, of Scotch-Irish ancestors. His father, who was born and reared in the city of Dub- lin, Ireland, was the son of Scotch parents, and was for a time a student of Trinitj- Col- lege, Dublin, but did not graduate, and came to this country when twenty years of age. His father, the grandfather of our sub- ject, was an engineer officer who resigned from the army and settled in Dublin, and followed the business of an engineer and architect. The father of Thomas McNulta, on coming to the United States, settled first in New York city, and subsequently in New Ro- chelle, in that State, where the .son was born. Many of the bridges on the New York & New Haven railroad and a portion of Fort Schuyler, in that county, as well as numerous houses and buildings, were constructed under the supervision of the father, who followed the business of contractor and builder, in which the engineering and architectural skill acquired from his own father was so suc- cessfully applied that he realized two for- tunes from his efforts, one of which he lost by disasters, especially by fire, and the pay- ment of security debts, and the other by the financial stress of the times in the fifties. He was an ardent lover of the United States and widely read in its history, and this love for the country he instilled into the minds of his children from their earliest infancy. His faith was tested later, and though an old man. he served for one campaign in the war for the Union, and took part in the bat- tle of Bristow Station and some minor af- fairs. His three sons. John. Benjamin F.. and Thomas, served in the same cause, the eld- est beino- the late Gen. John McNulta. of Chi- cago. 111., who died in the city of Washington, on February 22nd. 1900. Benjamin F. died manv years ago from wounds received while serving in the navv. Thomas McNulta was Thomas McNutta. History of the Bench and Bar of California. 895 being prepared for Columbia College at the outbreak of the war, and being affected with the war fever like many a youth of the time, he enlisted on November Jist, i86i, and served as a private in two different regiments, the D'Epineuil Zouaves and the Anderson Zouaves, and finally, in 1864-5, ^is captain of a company of Tennessee Union militia, organ- ized at Nashville from employes of the quar- termaster's department at that place. Dur- ing his service he was twice wounded slightly, and had his right leg broken at the ankle joint by a fall from a horse. In all, he participated or was under fire in seventeen engagements. The mother of Mr. McNulta was born in Invernesshire, Scotland, of French ancestry. Her ancestors came from near La Rochelle and her maiden name was Catherine Char- beray. Her grandfather was chief of bat- talion in the French army, and belonged to a collateral branch of the Lannes family. In addition to what has been said about the father's family it may be stated that a great uncle of Mr. McNulta served as an ofiicer with Sir John Moore, whose burial has been commemorated by the well known poem on the subject. This uncle subsequently married and settled in Spain, and all further trace of that branch of the family has been lost. The name McNulta, in its various forms of spelling, has been shown to have existed in the time of Macbeth, in whose household some of them lived. Mr. McNulta declares that Macbeth, by the way, did not murder Duncan but killed him in the open field in fair fight. Our subject studied law in the office of Wel- don & McNulta at Bloomington, 111., and was admitted to the Supreme Court of that State at the age of twenty-three years. He was associated with his brother. General McNulta, for several years at Bloomington, as attorney for the I. B. & W. Railway Co., and in other legal business. He settled at Santa Barbara, Cal., in 1873. After a year spent in reportor- ial and editorial work on the press, he renewed the practice of the law and has followed it continuously ever since. Mr. McNulta was district attorney of Santa Barbara county for one term by election, and for one term was assistant district attorney by appointment of his then partner, A. A. Oglesby. He was for eighteen years city at- torney of the city of Santa Barbara and man- aged for that municipality some notable cases, one of which involved the Haley sur- vey, and the proper adjustment of street lines (see Orena vs. The City of Santa Bar- bara, 91 Cal., 621). Another involved the title to the city hall, and the plaza on which it stands. All of this business he attended to alone except the city hall case, in wliicli he was ably assisted by Jarrett T. Richards, an accomplished member of the local bar, who was himself at one time city attorney and also mayor of the city. Mr. McNulta's practice has been of a varied character. Init mostly civil, and some of it important. He was the first attornej' employed by the late A. P. More in the case reported in the 71st Cal.. page 546, in which it was decided for the first tune that no appeal lies on behalf of the people from an order made by the Superior Court of its own motion under section 1385 of the penal code dismissing a criminal action. This case became well known throughout the State from the fact that the defendant was an old and prominent resident, and also because of a novel question of jurisdiction which was raised in it, but never was decided on the facts upon which the question was based. At the last election Mr. McNulta declined to be a candidate for city attorney, but is now retained as associate counsel for the city in some important cases, one of which is that of the Montecito Valley Water Co. vs. The City of Santa Barbara et al. This action involves riparian rights, the rights of owners of land to tunnel thereon for water, and some questions as to the right of a private corpora- tion to obtain water by prescription. Mr. McNulta is, as the expression goes, an "all round practitioner." His specialties, if he has any, are land titles and corporation laws. VICTOR H. METCALF. Hon. Victor Howard Metcalf, representative in congress from the Third district, compris- ing the counties of Alameda, Contra Costa. Solano, Yolo, Lake, Glenn and Colusa, was born in Utica, New York. October 10, 1853. He is a graduate of L^tica Free Academy and Russell's Military Academy. New Haven. Con- necticut. He entered Yale College, academical department, leaving it in his junior year to attend the Yale Law School, from which he was graduated in 1876. During college vaca- tions he had studied law in the office. of United States Senator Francis Kernan, at lUica, and in the offices of Horatio Seymour and John F. Seymour, in the same city. He was admitted to practice by the Supreme Court of Connecti- cut in June. 1876, and by the Supreme Court of New York, in 1877. He followed the prac- tice in Utica for two years. Coming to Cali- fornia in 1879. and locating in Oakland, he has ever since been one of the strongest men at that bar, having throughout this period of twenty years important legal business in San Francisco and other cities. He possesses ex- ceptional vigor of mind and body, untiring en- ergy and broad legal knowledge. He is al- ways practical in his methods, clear in his per- ceptions and has a full meastne of what Pope styled "good sense, which only is the gift of heaven." He follows his profession with the most industrious and serious devotion, and has pmspered to a degree that comparatively few have attained anywhere. In 1S81 Mr. Metcalf formed a law partner- s!ii|) with Mr. George D. Metcalf. who is also a Yale graduate, under the firm name of Met- calf & Metcalf, which still conlimios. The gentlemen are not brothers, .ind. we believe, are not related. Mr. Victor Metcalf was first elected lo con- gress in November. i8()8. and again in No- vember. 1900. His present term will expire on March 3. l()03. In his high oflice. as in his profession, he li.is bc<-n e.iincsi and i-onsi.uit — 896 History of the Bench and Bar of California. steadily accomplishing good work. His watch- ful zeal and efficient service have fulfilled the prediction of those who knew him best. HENRY EDMUND MILLS. Henry E. Mills was born in Montrose, Sus- quehanna county Pa., June 24th, 1850. His paternal ancestor, Samuel Mills, was born in Dcdham precinct, now Necdham, Mass., in 1622. His grandfather, Josiah Mills, was in the War of the Revolution, first at the age of 16 years as a drummer, and afterwards as a soldier, and was in the battles of White Plains, Saratoga, Trenton and Yorktown. His mother, whose maiden name was Halsey, was a de- scendant of Thomas Halsey, who settled at Lynn, Mass., prior to 1635. Mr. Mills was educated at Shurtleff College, Upper Alton, 111., and was graduated in 1869. He taught a country school for one year and then commenced the study of law at the St. Louis Law School, where he was graduated in 1872 with the honors of his class. He was married on August 30, 1877, to Emma B. Sprague. Five children have been born of the marriage. Mr. Mills has never sought political office, and. outside of one term as alderman, has never held an office. He is the author of a treatise on the law of eminent domain which was published in 1878, and was favorably re- ceived by the profession. A second and re- vised edition was published in 1888.- Mr. Mills practiced in St. Louis, Mo., from 1871 until 1896, when he removed to San Diego. In addition to his professional studies he has frequently contributed to the law reviews and the periodicals on constitutional and econ- omic subjects. R. P.. MITCHELL. Robert Brent Mitchell was born in Frederick county, Maryland, September 11, 1853. He was educated at Princeton College. l)ut left in the junior year. He is a graduate of the law school of the Universitv of Marvland. ancl was admit- ted to the bar at Baltimore, in June, 1874, be- fore he was quite of lawful age. He is of American parentage, his father being a farmer and gentleman of leisure. Mr. Mitchell located in San Francisco in Oc- tober, 1883. After practicing alone for three years, he formed a partnership with A. H. Ricketts, under the firm name of Mitchell & Ricketts. This lasted only a year, and Mr. Mitchell was alone in the practice until the opening of 1889, when he and Henry C. Mc- Pike became partners under the style of Mitch- ell & McPike. This also lasted but a year. Mr. Mitchell, during most of the period thus far gone over, was the resident director of the United States Law Association of New York. He began his long association with Hon. William M. Pierson, in 1890, under the name of Pierson & Mitchell. This was dis- solved in 1899, the parties continuing to occupy adjoining offices. Mr. Mitchell has, during nearly his whole period at the San Francisco bar, been one of the most prominent and successful practition- ers, and is still in the full tide of prosperity. It will be a good while yet before he is fifty years old. He has unusual natural force, somewhat striking appearance, and is as faith- fully devoted to his profession as he is, by nature and training, adapted to it. He is a cultivated and polished man. It is not to be left unsaid that he tries his cases in a masterly way. being apt, ready, and resourceful, while his arguments and addresses are clear, strong, and logical, delivered with the most pleasing voice and manner. His ready ability and un- embarrassed demeanor were most signally ex- hibited at many times during the progress of the great Fair case through the courts of late years. Mr. Mitchell is a Democrat, but believes in the gold standard, and left his party, for a time at least, on this question in 1896. He has no political ambition. He said to us in 1894, "I have never held an office, and never will." CYRUS F. McNUTT. When Judge McNutt came to California and settled at Los Angeles, in December, 1896, he was a lawyer of ripe mind, and large ex- perience. He was born on a farm in Indiana, July 29, 1837. At the age of nineteen, he entered Franklin College with the intention of pursuing its full course of studies, but be- fore the end of his third term the death of his father c<)mi)clled him to return home and conduct the farm. He left the farm in 1859. and spent the following winter as a student in the law department of the Northwestern Christian University. In the summer of i860 he was admitted to the bar at Franklin, In- diana, and began practice there in partnership with ex-Judge David D. Banta, who after- wards became dean of the faculty of law in the Indiana State University. After some months he formed a partnership with ex- Attorney General Thomas W. Woolen, of Franklin. In Mav, 1862, he removed to Mar- tinsville, Indiana, and practiced in partnership i n Iiim as one of its very ablest exponents. Judge McNutt has two sons, who are lead- ing members of the Indiana bar, comprising the firm of McNutt & McNutt. which has been est.iblished at Terre Haute for a grations have fi>und this )Ul, it seems. We are glad to be able to say that we have had his friendshii» and known his greatness of mind and his high ideals since the beginning of his career. JOSI'.ril \ AIMI r.\i.v, Joseph Naphtaly was born Seplember 2Q. iSijj. in Gostyn, Prussia. .After passing through the grades of the public schools. In- entered the ••'rench Gymnasium at Berlin. In 1856 he left the Gymnasium, and c.inie to C'alifornia, locating in San Francisco, which has been his home ever since. In that city he entered a private school known as San Francisco Col- lege, and there commenced to prepare for 908 History of the Bench and Bar of California. the entrance examinations at Yale. He re- mained there until January. 1859. when he left San Francisco to take a preparatory course of study in Williston Seminary, East Hamp- ton, Mass. In September of that year he passed his examination at New Haven and was admitted to Yale College as a member of the class of 1863, in which year he grad- uated, receiving the usual degree of B. A., and in due course he received the degree of M. A. On returning to San Francisco he entered the law office of Crockett & Whiting, as a law student. In 1865 he was appointed by W'm. Loewy. then county clerk, as his deputy in the probate and criminal department of the courts of San Francisco. In 1867 he joined Messrs. Crockett & Whiting in the practice of the law. and they formed a partnership in the name of Crockett, Whiting and Naph- taly. That partnership continued until Judge Crockett became a member of the Supreme Court of this State, when Mr. Paul Neumann, late attorney general of the Hawaiian Islands, was admitted as a partner, the firm name be- coming Whiting. Naphtaly & Neumann. This partnership continued until Mr. Neumann left for the islands, and Mr. Whiting retired from practice on account of ill health in 1871. In 1872 Mr. Naphtaly associated himself with David Freidennch and Charles L. Ackerman, under the name of Naphtaly, Freidenrich & Ackerman. This partnership has continued ever since, and at the same place. No. 426 Cal- ifornia street, San Francisco. In politics Mr. Naphtaly is a Democrat. He was elected to the legislature in 1869 and was the chairman of the judiciary committee of the assembly. He was attorney for Public Administrator Benjamin for five years. The firm of Naphtaly. Freidenrich & Ackerman were attorneys for Sheriflf Hopkins and Pub- lic Administrator Pennie during their res- spective terms of office. In 1869 Mr. Naphtaly was married to Sarah Schmitt. They have two children, Samuel L., who is an electrical engineer, and Gertrude. the wife of L. B. Feigenbaum, a merchant. Mr. Naphtaly belongs to the Masonic fra- ternity and the Odd Fellows' Order. He is a most generous-hearted man and has unfailing cheerfulness of spirit and vivacity of manner. FRANCIS G. NEWLANDS. Francis Griffith Newlands, who is about to enter upon his fifth consecutive term as a member of the lower house of congress from Nevada, had his period at the San Francisco bar — an active and eventful one. He was born in Natchez, Miss., August 28, 1848. He entered Yale College with the class of 1867, and re- mained until the middle of his junior year. Later he attended the law school of Columbian College, at Washington. D. C, but prior to graduation was admitted to the bar by the Supreme Court of the District of Columbia. He came to California in 1870. and began the practice of law in San Francisco. In 1876 he formed a partnership with Reuben H. Lloyd, which continued under the style of Lloyd & Newlands, until 1882. For the last two years of this time Mr. W. S. Wood was a member of the firm, which took the name of Lloyd, Newlands & Wood. Mr. Newlands thereafter practiced alone for about two years and then became associated with ex-Superior Judge James M. Allen (Newlands & Allen). Mr. Wm. F. Herrin entered the firm in 1886, and "Newlands, Allen & Herrin" continued business down to 1893, although Mr. New- lands removed from the State in the spring of 1888, locating in New York City. Late in the same year he removed to Reno, Nevada, which has ever since been his residence. While practicing in San Francisco, Mr. Newlands was for some years the attorney for the Spring Valley water works. He married a daughter of William Sharon, capitalist of San Francisco and United States senator for Nevada. He and Mr. Frederick Sharon were executors of William Sharon's will. Senator Sharon, who died in November, 1885, had, in a trust deed. conveye.I a third of his vast es- tate to the three children of Mr. Newlands, the latter having lost his wife in 1883. Mr. Newlands was one ot the trustees of the trust estate. On his way to the east on a visit in 1887, Mr. Newlands sent to the San Francisco Bul- letin, from Los Angeles, a communication of two and a half columns on San Francisco municipal affairs. (Bulletin, March 25, 1887.) During his residence in San Francisco, he was always of Democratic politics. His name was prominently mentioned before the Democratic legislature of 1887 for United States senator. George Hearst was chosen at that time. L^pon nioving to Nevada. Mr. Newlands engaged actively in the agitation of the silver question, which became paramount in the silver state, and aided in organizing the Silver party. He was for years vice-chairman of the National Silver committee. He was also active in the work of reclaiming arid lands by irrigation. Mr. Newlands was first elected to congress in November, 1892. by the Silver party and the Silver Republicans, defeating the regular Republican and regular Democratic nominees. As the representative of the Silver party he has been in that body since March 4. 1893, so that the term for which he has just been elected will complete ten years of service. He has become one of the most useful and influential members, as he has always been one of the best-liked. He is a sound lawyer, a pleasing speaker, a ready debater, and a close student of state and national problems. Mr. Newlands. a few years after the death of his first wife, married a daughter of the eminent lawyer. Hall McAllister, of San Fran- cisco. THOMAS W. NOWLIN. Thomas W. Nowlin was born in the State of Pennsylvania. January 4th. 1848. and emi- grated with his parents to the State of Iowa in 1851, where he grew^ up on the banks of the Mississippi river. He entered the Union Lyman L Mo on the Republican side. Judge Nusbaumer's ai)pointmenl as a trustee of the Garcelon Trust, in Jmie. i8(K). was ;i not;ible illu-l r.ation of llif contidciu-r ln' in spires, and bore unusual testimony to his high character as a lawyer and a man. This trust, involving a large estate, was created in Feb- ruarv. 1891, and it was provided therein that in the event of the death of any trustee, his successor should be appointed by Mrs. Garce- lon's two nephews in conjunction witli the Superior Judge of Alameda County, who should be oldest in commission. Judge Nus- baumer was the unanimous choice of the nephews and Superior Judge Greene, in June, 1896, as successor of Trustee I. N. Knowles. deceased. The Judge exerts a commanding influence in the councils of his party. He is chairman of the Republican county central committee of his countv. a close friend of Governor Gage and Congressman Metcalf, and there is no man whose advice is more eagerly sought and followed in every political campaign. He is one of the strong bar leaders of central Cali- fornia. His career in his profession is an ex- ample to all young men who are looking to the bar as the arena of their life-work, marked, as it has always been, by high-minded con- duct and devotion to duty. No element of chance has contributed to his signal success as a lawj'er or to his enviable position as a citi- zen, but his victories have been bravely fonght for and literally achieved by his own strength. FRANK M. PORTER. I-'rank Monroe Porter was born in Waushara county. Wi.sconsin, in 1857. He is descended from old Colonial stock. In the early part of the eighteenth century the family was located in Connecticut, and the branch from which he is descended removed from there to W-r- niont : from \'ermont to Oswego county. New \'ork : and from Oswego county. New York, his father moved to Wisconsin. His ances- tors, both paternal and maternal, were prom- inent in the Revolutionary War. His great- gr.indfather, Moses Porter, was promoted to maior for gallantry in the battle of Remis Ikights, and served throughout the Revo- lulionarv War. The father of this sketch -erved in the Civil War in the Eleventh Wis consin \^)lunteers, and was wounded at the charge on Fort Blakeley. Mobile, the last part of the last battle in which his regiment wis eiK'aged. IVoininently in hi-^ boyhood recol li'Clions are the hardships endured during the lime of the Civil War. at which time then- was not left an able-bodied man in the township in which his family resided. .\t the close of the Civil War his p.irents removed to Dodge county. Wisconsin, wliere his father engaged in mercantile I>nsine>;s. In IX7.T- lii'^ father having in the meanlime died. I lie family removed to Madison. Wisconsin Mr. I'orler was educated at the Wis<-onsin .Siiie University. Me graduated from tiie uni \ir>-ity in the class of 1881. He sinon. and was gr.id- iviled from the l.iw dep.irtnienl of the ,Statc 916 History of the Bench and Bar of California. University in 1883. In that university the great college entertainment is the annua! joint debate between the literary societies of the institution. Mr. Porter was one of the debaters representing his society, the Athenian, in the contest of 1881. He served an apprenticeship at the ma- chinists' trade from 1869 to 1873, in the Cen- tral Pacific Railroad shops at Sacramento. He was deputy county recorder of Yolo county during 1876-7, during which time he com- menced reading law. In 1878 he returned to Sacramento and entered the law office of Col- onel Creed Haymond. as a law student. He was admitted to practice law by the Supreme Court in November, 1879. In politics Judge Post has always been an uncompromising Republican, and has been honored by his party with many positions of public trust. He served as deputy clerk of the Supreme Court during the years 1880- 1881 and 1882. He was twice elected city justice of the peace of Sacramento city, and served both terms, to-wit : from 1884 to 1889. He was appointed by Governor Markham to fill a vacancy in the office of city attorney of Sacramento city in 1892, and served one year. He was first deputy attorney general for four years under Attorney General W. F. Fitzgerald, during the years 1895-98. In 1899 he was appointed assistant attorney general by Attorney-General Tirey L. Ford, and is at present filling that position. Judge Post is a sound lawyer, and an elo- quent advocate and public speaker, being es- pecially strong before a jury. He is an en- thusiastic and prominent member of the Be- Mr. Porter was for four years deputy clerk of the Circuit Court of Dane county. He was a member of the Dane county bar until 1887, when he removed to Los Angeles, California, taking offices in the California Bank Building, in which building he is still located. Politically, since 1881, he has been a voting Prohibitionist, believing in total abstinence for the individual and prohibition for the State. He was the secretary of the Prohibition state central committee of Wisconsin, and has been prominently identified with the organization '"){ that party in California. He has been their nominee for Superior Judge, presidential elector at large, and for congress. In 1893 he married Suella Billmeyer, of Tecumseh, Michigan. He is engaged in the general practice of law. His practice has been mainly that of corpora- tion and commercial law, and he has among his clients some of the heavy business men and corporations of Los Angeles. CHARLES \. POST. Charles Nichols Post was born in El Dorado county, California, on the 14th day of March. 1853. His father, A. V. V. Post, a native of New Jersey, came to California in 1849, and his mother, Cornelia M. Post (nee Almy), a native of New York state, came to California in 1851. Mr. Post first attended the district school at Mormon Island, Sacramento county, then at Folsom, and next at Sacramento city, at which latter place he took up his residence in 1864. nevolent and Protective Order of Elks, and the Native Sons of the Golden West, being a past president of Sacramento Parlor No. 3 of the last named order. The Judge was married in 1880 to Miss Nellie M. Shepherd, of Sacramento, to whose unfailing amiability, remarkably fine judg- ment and constant sympathy and support he attributes much of his success in life. History of the Bench and Bar of California. 917 HOWELL A. POWELL. Howell A. Powell is a descendant of a Welsh family of Breconshire. His father was a pioneer settler at the north end of the Marysville Buttes, Sutter county, in the Sac- ramento valley, where the son was reared through infancy and boyhood with the ordi- nary encompassment of an early California rancho. He received an academic education ; graduated from the State normal school at San Francisco, in 1867 ; was principal of the Brooklyn grammar school in Alameda county in 1868 ; received a special course in law in the office of Judge Blatchley, of San Francisco; and was admitted to the bar in 1870, at the January term of the Supreme Court. He im- mediateh' established an office in San Fran- ci.sco, and ever since has been actively engaged in law practice, having for many years enjoyed an extensive business in the civil line. He has been emploved in some of the most noted civil cases of the State, and in the settlement of many large and complicated estates in probate. Mr. Powell is now one of the attorneys of the City of Oakland in the water-front litigation with the Southern Pacific Company, which litigation affects property of greater value per- haps than any heretofore involved west of the Rocky mountains. He was a member of the board of freeholders, elected in 1889, which framed the present charter of Oakland, and was the author of that provision of the charter which makes it compulsory upon the city council to grant franchises within certain terri- tory contiguous to the water front, to any railroad company that may seek to enter the city. In national and State politics. Mr. Powell has always been a Republican. In the presidential election of 1896, he was the McKinley elector representing the third con- gressional district, and received the highest vote of his party in thirteen counties of the State. His speech in Oakland during the campaign on silver, the tariff and civil service, before the National Repul)lican League, which was published verbatim in the Oakland En- quirer, was said to have contributed largely in saving the State for his party in that cam- paign. Outside of Alameda county, the State went Democratic in the neighborhood of 3.000 votes. Alameda, Mr. Powell's county, gave the McKinley electoral ticket a majority of over 5,000. He is now serving his second term as a member of the Oakland board of education. He has resided in Oakland since i8f)8. In 1876, Mr. Powell was married to Miss Mary E. King. Four children have been born to them, two daughters. Eva and Helen, and two sons, Alvin and Stanley. ISAAC H. PRESTON. Isaac H. Preston was born in Carroll county, Illinois, in 1859. He was educated in the common schools and at Rock River Uni- versity, Dixon. Illinois. He came to Califor- nia and located at Los Angeles in 1882. There he studied law under Judge Waldo M. York, and was admitted to the bar in 1892 by the Supreme Court. In 1893 he undertook the management of the G. W. Morgan estate, which was deeded to him in trust for the benefit of the creditors, and two years later the estate of Ralph Rogers, also deeded to him for the benefit of certain creditors. These were large and valuable estates, which were in an embarrassed condition, and which he suc- ceeded in settling in a satisfactory manner. In 1900 Mr. Preston was employed in the famous Harris litigation in the state of Wash- ington, consisting of a divorce suit, and five civil suits, resulting therefrom, the whole in- volving over three hundred thousand dollars, and which he succeeded in settling out of court in a remarkably short period of time, to the satisiaction of his client. Mr. Preston is a man of family, having a wife, and one daughter, twelve years of age. He has a large office practice, and gives at- tention principally to probate business and complicated land matters. JOSEPH D. REDDING. This gifted and versatile "native son." who gave up a valuable clientage in San Francisco io follow the profession in New York City, comes back to the "Golden West" every year foi an extended stay." His heart is always here. When, in 1899, wc sent him a copy of Colonel Baker's famous speeches, he wrote to us. .saying: "Thos. Starr King's "Substance and Show ' has been the favorite volume on my shelf for years. .Mongside of it I now place this book, with an intense feeling of pride and gratification that from out of California have come some of the purest English and choicest oratory to be foinid in liler.ittue." Mr. Redding was born at Sacramento. Cali- fornia, on the 13th day of September. 1S58, conn'ng of an old Massachusetts family. His grandfather was Ignited Slates consul at \:\\- mouth. Nova Scotia, where B. B. Redding, father of Joseph D.. was born in 1824. B. B. Redding early developed a taste for natural 918 History of the Bench and Bar of California. history. He came to California from Yar- mouth with a company of young men he had oiganized, and who served as crew of their own sailing vessel, and bringing a cargo of lumber. This was in May, 1850. B. B. Red- ding's career in this Slate was distinguished for industry and public spirit. He served in the legislature, was prominent in politics, for many years a leading journalist, mayor of Sac- ramento in 185O, and Secretary of State 1863-1867. From 1868 until his death in 1882 he was the land agent of the Central Pacific Railroad Company. He was a regent of the State University, president of the Board of Trustees of the San Francisco Academy of Sciences, and was the controlling spirit of the Board of State Fish Commissioners. He was devoted to science. He wrote, among other papers in that line, one on the climate of California, for the State Agricultural So- ciety in 1877, and another on the foothills of the Sierra, read before the San Francisco Academy of Sciences, in January, 1879. His father survived him for several years, dying at a great age at Brighton, Sacramento county. Joseph D. Redding, after attending the Sac- ramento public schools, entered, in 187 1, the California Military Academy at Oakland, con- ducted by Rev. David McClure. He remained there for two years, and then went to the Urban Academy in San Francisco, and pre- pared for a collegiate course under Professor Nathan W. Moore. This accomplished, he was admitted in 1876 into the Scientific De- partment of Harvard University. Mr. Redding was twenty-one years of age when he entered the law office of Hall Mc- Allister in San Francisco, and finished his preparation for the bar, having given much previous attention to the study of law. In August. 1880, the State Supreme Court ad- mitted him, after examination, to practice. He very soon gathered a good clientage. At the age of twenty-three he became one of the attorneys for the Central Pacific and South- ern Pacific Railroad Companies, for the land departments thereof. Mr. Redding had in charere all of the cases arising out of the overlapping of the Atlantic and Pacific Railroad grant in Southern Cali- fornia. These involved possibly seven hun- dred and fifty thousand acres of land. He was attorney for several insurance companies and mercantile houses, and also for most of the theatrical managers of the State, and those in New York who have connections with this coast. Mr. Redding succeeded to his father's pre- dilection for oisciculture. For some years he was president of the State Fish Commission and special agent of the United States Fish Commission for the Pacific Coast. He was a central figure in circles of art. In 1886 he became president of the San Fran Cisco Art Association. He was the first of chess players in California, having held the championship for i884-'85. In 1884 he won three eames from the world's champion in chess. Dr. Zuckertout. In aid of charity he ;ippcarcd on the theatrical stage on several occasions. In 1878 he won the cue at bil- liards in the tournament at Cambridge. Mr. Redding possesses genius in the line of musical composition. Here he challenges special attention. Miss Ella Sterling Cum- mins presented this side of his mind, in a way pleasing to the musical world, in a very entertaininp^ contribution to the San Francis- can of May 8, 1886. Mr. Redding was for a long time president of the Handel and Haydn Society of San Francisco. He has written several comedies. Mr. Redding removed to New York City in 1895. He is associated in a large practice with Mr. James McNaught, under the style of McNaught & Redding. He has a family, and a moderate fortune. D. G. REID. Daniel Garrard Reid was born October 24th, i860, near Manchester, Kentucky. His maternal ancestor. Governor James Garrard, was a descendant of one of the French Hu- guenots. Governor Garrard was largely in- strumental in the passage of the Toleration Act in the House of Burgesses of Virginia, and was the only man ever elected twice as Governor of the commonwealth of Kentucky. Through his grand-parents on both sides, Mr. Reid traces his ancestry to the old New York Dutch, the English, the French Huguenots, and Scotch-Irish. Having finished his edu- .^ 'wv -^iir -. cation at North Georgia Agricultural College at Dahloncga, at the age of 21, he started west. He lived in Nevada for tiirce years, sixteen months of the time being spent as a guard at the Nevada state prison, his uncle, Major William Garrard, being warden. While in Nevada he spent all of liis spare time studying law. and in August. 1884, he went to Eureka, California, where he entered the law office of John A. McQuaid to finish his studies. He was admitted to the practice of law before the Superior Court of Humboldt county, by Judge John J. De Haven, on June 6th, 1885, and the following January, while en I Geo. W. Reed History of the Bench and Bar of California. 919 route to Weavervillc to locate, procured by his own efforts a special examination and was admitted to practice before the State Supreme Court. It was a noteworthy fact that only four special examinations were given in eight years, and Mr. Reid often wonders how he secured his, when he did not know any of the judges and no attorneys in San Francisco, and had no assistance, not even filing his certificate of examination, as re- quired by the rules, until after his license had been granted. He continued to practice at Weaverville, until May, 1897, when he formed a partner- ship with James W. Bartlett, under the firm name of Reid and Bartlett, with offices at Red- ding and Weaverville, and moved to the for- mer place where he still resides. On May 19th, 1887. he married Miss Mary Elizabeth Allen, of Douglass City, California. Mr. Reid was a member of the Board of Ed- ucation of Trinity county in 1893 and 1804. and was elected a member of the assembly from Trinity and Tehama counties in 1894 as the Democratic nominee. He took a prom- inent part during the session of 1895, being largely instrumental in preparing and passing the revenue laws of that session. S. In 1896 he ran for Superior Judge of Trin- ■" ity county, but was defeated by seventeen x/otes. He has had quite a wide experience in the practice of law, and in two cases after the acquittal of his clients for murder, he has had to have them put back into jail until they could be spirited away to. prevent them from being lynched by mobs. He was en- gaged in the defense of the Erickson murder cases, also the Littlefield lynching cases. The case of Gibson vs. Board of Super- visors of Trinity County was instituted and carried through by Mr. Reid to a successful termination, and is the only bond election con- test case on record in the reports. He and his firm enjoy a large and lucra- tive practice, especially in mining cases. GEORGE WILLIAM REED. George William Reed, of ibe prominent and active law firm of Reed & Nusbaumcr. of Oak- land, has lived in that progressive city from the city's infancy, for the date to which his residence there runs back is November 14, 1856. We knew the place in that year well, and there was not much of it, but it was more oak-land then than ever since. The now pop- ulous and delightful place was a grove of oaks, diversified with scattered homes and a dimin- utive business center. The indigenous forest has been subducted to its last shadow, but the si.ghtly city that has succeeded is still more beautiful, with varied flora invited by the desire of man and kepi green by his im- tiring hand. Mr. Reed was born in Vassalbord, Maine, on June 14. 1852, so that he has lived in Oak- land since he was four years old. He there attended the public schools, and prepared for the University of California at the Oakland College. In 1872. at the age of twenty, he was graduated from the univcrsuv, with the . degree of A. M. in 1876, Mr. Reed, his brother, Mr. Reed bemg county clerk, became a deputy in the hitter's otfce, and served as such for two terms, or four years. During this period he studied law at night under the direction of that able lawyer, James C. Martin, since deceased, his duties as a deputy clerk affording him ex- cellent opportunity to become acquainted with the details of law practice. He was admitted to the bar by the State Supreme Court in 1879. and entering the office of another of Oakland's gifted lawyers (A. A. Moore), he l)egan practice and followed it for nine years. He was then, in the fall of 1888, elected on the Republican ticket, to the office of District At- torney of Alameda county. He was re-elected in 1890, his incumbency covering four years. His was a faithful and able administration of that important office, marked by the wise dis- position of great public interests and the suc- cessful prosecution of some noted criminals. Ex-Judge Emil Nusbaumer was assistant District Attorney under Mr. Reed, and at the end of their public service the two gentlemen resumed law practice at Oakland in partner- ship under the style of Reed & Nusbaumer. The firm has ever since then (1893) been fully occupied with a general practice steadily in- creasing in volume and value. Mr. Reed is a man always true to duty, alert, ready and sedulous, "unhasting, un- resting," and is one of the strongest men at the bar. He came from sturdy and industrious New England stwk. He is now in the prime of life, but continues the steady and studious habits of his younger manhood. He is a very excellent man personally and socially, pleas- ant in address, a good, prompt speaker and debater, easy in conversation, courteous and punctual in his professional and other en- gagements. In his office business he is pains- taking, and unflagging, having few e(|uals in drafting papers that stand judicial test. His skill as a pleader is attested hi many decisions of the Superior and Sunremc Courts. Being an ardent ReDublican. he has always taken an active jiart in j)oIitics. frequently as- sisting in "stumiiing" during tlie state and national camnairesident. He has for several years been a prominent member of the Benevolent and Pnitective Or- der of Elks, is past exalted ruler of Oakland Lodge. No. 171, ami in the year kkx) was a delegate to tiie grand lodge which met at .All.iiilic Cilv. New Jersey. He is a past grand of I'liiversity Lodge, No. 144. j. (). O. v.. and a member of the Zeta Psi of the Uni- versity of California. Ji)S. ROTHSCHILD. Mr. Rothschild is today one of our leaditig commercial lawyers. We do not mean by this that his practice is entirely commercial. 920 History of the Bench and Bar of California. for he has tried cases in every department of civil law, but that the drift has been in the direction of commercial litigation, and this constitutes a large part of his practice. We do not think we err in stating that this is regarded as the cream of legal business, and the man who can command it must have given proof of an ability of the first order. It is the practice that in every large city be- longs to the few. Friends, influence or wealth are all powerless to command it. It seeks pure merit, and merit alone can win the laurels. In great emergencies the best is called for, and in commercial cases where large interests are at stake the best men are sought regardless of any prior afifiliations. It is to the credit of any man that he can at- tain such position in a conmnmity. It evi- dences not alone natural ability but hard work and close study. Natural ability alone would not count. This must be reinforced by in- tense diligence. Mr. Rothschild has worked his way upward alone and unaided. In civil law it is a slow process, but with the essentials to success it is a sure process. .And he can now regard the past years with ail ihe more satisfaction that they have been so fruitful, and that by his ability and industry he is the representative of .so many great concerns, and, when we take the aggregate amount, of vast capital. Joseph Rothschild is a native son. He is a Californian, and very proud of it. His learning in ordinary topics, as well as in the law, came from our schools. He stands as a fine type of our best young men therefore. It is true he finished at Yale and took his degree there in 1873 with honors, but the basis of his knowledge, the great Ix'tter part was gained here. He went through all the grades of our schools up to the State University where he was gradu- ated before going to Yale. In his school days he was as popular as he has been since. The boy is father to the man. indeed, in this, as in other things. At Yale he well represented his native State, and was highly esteemed by professors and pupils alike, so much so, indeed, that the Scales of Justice was awarded him. This unique present is peculiar to Yale, we believe, and is given at the close of the term to the most popular man. On his return to this State, Mr. Rothschild was admitted to the practice of his profession by the Supreme Court. He at once began, and from that day down to the present he has known but little idle time. As we stated be- fore in speaking of him, he has devoted him- self almost entirely to a commercial practice, and in this has had charge of some of the most important cases tried here. Commercial law he has thoroughly mastered, but neverthe- less he goes exhaustively into the details of every case in which he is retained. To this he adds a thorough logical power before a court or judge; uses terse English, and di- vests his language of all flowers of oratory. He in fact is blunt and forcible, and in this is eloquent. Hence he has been successful. He is now the advocate for some of the most important interests and mercantile houses in the metropolis. Mr. Rothschild belongs to many leading or- ganizations. He is past president of the Independent Order Free Sons of Israel; past president United Lodge. I. O. B. B. ; past president Golden Shore Council No. 5. United Friends of the Pacific ; ex-vice president Young Men's Hebrew Association ; past president Board of Relief. I. O. B. B. He is also past grand president of the Inde- I)endent Order B'nai B'rith ; when he attended the international convention as a delegate from the district grand lodge here, held in Richmoiid, Va., he was elected there Judge of the Court of Appeals for this coast, and to this important position he was afterwards re-elected at Cincinnati, Ohio, which position he still holds. This body is certainly repre- sentative of the wealth and intellect of our Hebrew citizens, and his election gives evi- dence of his standing. The favor with which he is regarded by his own people is indeed the very best test of his integrity. In politics Mr. Rothschild has always been a Democrat. He was elected school director some years ago. and the flattering vote he then received showed his popularity with the whole people. He was elected president of the Democratic central committee of San Franciscco in i8q6. He is a member of the Iroquois Club of San Francisco. He is a director of the the Pacific Paving Company; president of the Sa^i Fran- cisco Diamond House: president of the B'nai IVrilh Hall Association, and also a member of the Vale and Concordia Clubs of San Fran- cisco. HENRY H. RETD. Henry H. Ri-id was born at Babylon. N. Y., .March !/< 1845, a farmer's son, of Scotch- English lineage. He was graduated from Columbia College Law School in 1868. After a short practice in New York city, he removed in the fall of 1871 to Norfolk. Virginia, where he soon won a firm place in the esteem of the people and secured a valuable clientage. He History of the Bench and Bar of California. 921 quickly stegpcd into the frt)nt rank of the Norfolk bar, while, apart from the profes- sion, his scholarsiiip and address made him the soul of literary and social circles. It was in 187^ that he commenced practice at the San Francisco bar, and he has since followed it there continuously. Mr. Reid has the impulses and intuition of the true lawyer. His perception 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. His mem- ory is true, he has remarkable power of state- ment and illustration, and rare perspicacity ; ' is persistent in inauiry; and confused heaps of facts unfold into system and harmony 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 lawj'er 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 general knowledge. Since early boy- hood he has been a great reader and close student. His conversation shows his famil- iarity with the best writers of every era, re- vealing 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 ex- act man. Histories make men wise ; poets witty ; the mathematics, subtle ; natural phil- osophy, deep ; morals, grave ; logic and rhet- oric, able to contend." In Mr. Reid these ef- fects all stand out prominently. Mr. Reid indulged his literary taste to a limited extent in New York and Norfolk, contributing to the columns of leading jour- nals ; but in California, while still pursuing a wide range of reading, he has seldom turned his gen to themes other than the law. How- ever, in our book, "California Anthology," (1880), are selections from his writings here, one being a tribute to the genius of Oliver Wendell Holmes. In Bench and Bar (1889) are some observations of his upon Judge ,Mc- Kinstry; and the valuable Introductory article of the present History is from his pen. In person Mr. Reid is of large and compact build, and of striking personal appearance. He is a strong man physically, as well as men- tally and while of gentle disposition and tem- perate habits, is full of grit and stands by his convictions. J. C. RUDDOCK. J. C. Ruddock came to California from New York City in the year 1853, when he was about one year old. His whole life since has been spent in California. He was raised in Tuo- lumne county, at Jamestown, or. as it was bet- ter known among miners, "Jimtown." His father was one of the early miners of that section, having owned and mined in several rich placer claims on Wood's Creek, a large tributary of the Tuolumne River. Mr. Ruddock was educated in the public schools, and at the age of fifteen obtained a certificate to teach, and began at that early age at Green Springs, near Chinese Camp, in 1 uolumne county. This was his first school Fmishmg his term there, he went to the State Normal School— the San Jose Normal then bemg the only one in the State— from which he graduated. After graduating, he taught a term at Onisbo district (.Courlland), Sacra- mento county, about fifteen miles down the river from Sacramento. After finishing there he went to Mendocino City, on the coast of Mendocino county, and took charge of the public school. While at this place he was elected to the office of su- perintendent of schools of Mendocino county, which office he filled two terms, and then be- came principal of the Ukiah Grammar School. In 1882 he was again elected to the office of superintendent of schools for a four years' term, which position he resigned after three years and four months to accept the position of chief clerk of the United States surveyor general's office at San Francisco, under Presi- dent Cleveland's first administration. At the close, of this administration he accepted a po- sition in civil life, as cashier of the Mercan- tile Bank in San Francisco. Mr. Ruddock early had taste for law. and while he was superintendent of schools had spent much of his time reading on his fa- vorite subject. He picked it up again, and went before the Supreme Court, for examination, and was ad- mitted to practice, January 12, 1892. In 1890 he was the Democratic candidate for superintendent of schools of San Francisco, but suflfered defeat, with the rest of his ticket, in the landslide of that year. He has remained continuously at the prac- tice of law in Ukiah since his admission, and is, at this writing (July, 1900) city attorney of Ukiah city. Mr. Ruddock was appointed, by Governor Budd, one of the board of managers of the Mendocino State Hospital, in March. 1896. and held the same until removed by Governor Gage, March i, 1900. Mr. Ruddock is a pronounced Democrat, .ind has labored for many years in perfecting the organization of that party in California, under the direction and auspices of the State League of Inxiuois Clubs, of which he is Past Grand Sachem, and of which he is at preseiU Grand Organizer. At the death of Senator John Boggs. of Colu.sa. he received a tie vote for the nomina- tion of joint senator from the district com- prising Colusa, (ilenn and Mendocino counties. After the tenth ballot he withdrew in favor of James W. Goad, of Colusa. In 1880 he was married to Miss Kate Sid- dons of I'kiah. who left him a widower, in July. 1884. with a surviving child of a family of two. a boy having died before the mother. In i8go lie was married to Miss Mary 922 History of the Bench and Bar of California. Hildreth. daughter of William J. Hildreth, one of the pioneers of Ukiah Valley and Men- docino county. His family now consists of five, including himself. In politics, Mr. Rud- dock is a hard, but fair fighter. He is radical, but consistent and sincere. His politics have been shaped because he is a bitter and life- long opponent to the protective tariff. He was opposed to the Spanish war : he is against ex- pansion, in the ocean, and believes our mission was ended in the Philippines when Spain was driven out ; he believes the Constitution fol- lows the flag, and is opposed to anything that savors of militarism and imperialism. In the war in South Africa he was a strong sympathizer with the Boers. Mr. Ruddock is a fine elocutionist, and a public speaker of force and eloquence. A. K. ROBINSON. Alexander Kelley Robinson was born July 26th, 1850, in Gallatin County, Illinois, of a Virginia family, and is a descendant of Speaker He attended Vale Colleee, academical depart- ment, graduating with the class of 1870. He prepared for the legal profession in the office of Hamilton Pope, and in the law department of the University of Kentucky, and was ad- mitted to the bar in 1872. Coming to Cali- fornia in that year, he entered the office of Haggin & Tevis, San Francisco. These gen- tlemen were lawyers, but not engaged in prac- tice, being capitalists of unlimited resources, and engaged in financial, mining and other en- terprises on a grand scale. After passing a year with that firm, Mr. Rothchild removed to Los Angeles, and formed a partnership with John R. McConnell and John D. Bicknell, which continued a few years, under the style of McConnell, Bicknell & Rothchild. He re- turned to San Francisco in 1877, and practiced alone until 1887, when he united with Mr. Henry Ach, to form the still existing firm of Rothchild & Ach. These gentlemen have al- ways had a valuable practice, general, cor- Robinson, of the House of Burgesses of Vir- ginia. He received a thorough education in the schools of Shawneetown, Illinois. He mi- grated to Placer County, California, in 1870; studied law. and was admitted to practice in all the Courts or the State. He has attained success in the profession. He was District Attorney of Placer County in 1890-92, and filled that office with distinction and integrity. He has a lucrative practice in Auburn, and takes an ac- tive part in the affairs of his City, County and State. He is a member of various fraternal orders; and has held numerous public positions of trust. It is said that he combines the ur- banity and suavity of his ancestor with the business courtesy and affability of the West- erner. J. M. ROTHCHILD. Joseph M. Rothchild, of the prominent San Francisco law firm of Rothchild & Ach, was born in Louisville, Kentucky, in January, 1852. porate and commercial, whicii of late years has grown to very large proportions. Mr. Rothchild married, at San Francisco, in 1875, Miss Adelaide E. Marx, and has three children. JOHN E. RICHARDS. Among the Native Sons of California who have achieved success in more lines than one. and exhibited not only a broad catholicity of taste and .sympathy, Init a versatility of talent and an industry directed to varied accomp- lishments, none ranks higher in merit or in repute among competent judges than John E. Richards of the San Jose bar. The temptation toward change which besets men of many talents, which has led so many gifted minds to turn capriciously from one profession to another, and to take up a dif- ferent pursuit at each different epoch in life, becoming all things by turn and nothing long, has never affected the course of Mr. Richards. History of the Bench and Bar of California. 923 He has had a mind sufficiently strong to dom- inate his talents, instead of being dominated by them. All his faculties have been devel- oped continuously, as parts of a complete self- education, and not as diverse incidents in a changeful career. Consequently, while he has achieved distinction as a lawyer, writer, orator, poet, lecturer, and professor, his career has been directed always toward eminence at the bar, and all his studies and his work have been made subservient to the one object of achiev- ing that intellectual fullness which is essential to the comprehension of law as a philosophy of justice, as well as a code of procedure. Born in Santa Clara Valley in 1856, and descended, on his mother's side, from that strong North of Ireland stock that has given so many illustrious men to American history, and, on his father's side, from the sterling Welsh race, Mr. Richards passed from the public schools of San Jose to the University of the Pacific, from which he graduated with the degree of B. A. in 1877. Choosing the law as his profession, he entered the law depart- ment of the University of Michigan, and tak- ing the full course, received the degree of LL. B. in 1879. He then returned to San Jose and began the active work of an attor- ney. A young lawyer in beginning practice has always much 'leisure. Mr. Richards em- ployed his in studies, not only of the law, but of the allied subjects of logic, politics and eco- nomics. For three years he served as trustee of the University of the Pacific, and as lecturer on political economy, modern history and con- stitutional law. His incessant activity found time, also, for literary work, and through the columns of the local press he made himself known as a forceful writer of editorials, as well as a graceful essayist and a poet with a true inspiration for melody and sentiment. He is one of the most logical rcasoners at the bar, and being able to apply the fundamental principles of law to cases that come before him. is one of the safest counselors in the State. Being still a young man, the better part of Mr. Richards' career is in the future, as he has taken a rank among the leaders, not only at the bar, but in the wider fields of liter- ature and politics. Among the most important cases with which Mr. Richards has been associated during his twenty years of practice may be mentioned the case of Richards vs. Donner. in 72 Cal. 207, in which he was plaintiff as well as advo- cate, and which is the leading California case upon the validity of conveyances made without consideration by persons of weak rnind sub- jected to undue influence. The cases of Ed- wards vs. San Jose Printing and Publishing Company, in 09 Cal. 4.^1. and Childers vs. The ^an Jose Mcrcitry. 105 Cal. 284, with which also Mr. Richards was connected, are leading cases upon the law of libel. Tn the case of Ex Parte Flaherty, in 105 Cal. S5^. ^Tr. Rich- ards ably defended the right of the citizen to freedom of rclieious worship; while in the case of In Re Shortridg,e. in 00 Cal.. 52^1. be stood strongly and successfully for liberty r>f speech and of the press. These cases indicate the line and character of Mr. Richards' thought and work as a member of the California bar. JOHN H. RUSSKLL, John H. Russell was born in Cook county. Illinois, on July 16, 1843. receiving his pri- mary education by working on his father's farm during sunnner and attending public school in winter, until he arrived at the age of si.xteen, when he became a student at the Northwestern University at Evanston. Illi- nois. There he remained until the breaking out of the Civil War, at which time, he. like many others of his fellow-students, offered his services to his country. He became a mem- ber of the Thirty-ninth Regiment of Illinois Volunteers, known as the "Yates Phalanx," so named by the famous war Governor of that state, and shared with the other members of his regiment in its first baptism of blood at Alpine Station, West Virginia, when they so effectually repulsed the advance of Stonewall Jackson's division, on January 5. 1862; but, being vastly outnumbered by the enemy, they withdrew across the Potomac River and suc- cessfully defended Hancock. Maryland, after a terrific bombardment by the Confederate forces. The Confederates then turned their attention toward Romney and the innnense government stores at Cumberland, Maryland, to relieve which our subject marched to Cum- l)eriand with his regiment the distance of forty miles in twenty hours. His regiment then be- came a part of the diyision of the lamented General Lander, who was succeeded by Gen- eral Shields. Ihe skirmishes, battles, marches and countermarches that followed during the succeeding campaign up and down the Shen- andoah Valley would be tedious to the reader, l)ut suffice it to say that this intrepid western division administered to Stonewall Jackson his first and only substantial defeat at Kernstown, near Winchester, on March 23. iS()2. At the close of Snields" o])erati(>ns in this portion of the Old Dominion, the brigade to which our subject was attached was sent by transport down the Potomac River and up the James River, for the purpose of reinforcing the .Xriuy of the Potomac, then about to "change base.' It arrived in time to take part in the battle of Malvern Hill, and covered the final retreat of the army of McClellan down the Peninsula; garrisoned Suffolk for several months, pro- ceeded to Newberne. N. C. ; Hilton Head. S. C. ; took part in the storming of Morris Isl- and. I'^orts Wagner and (Jregg. anti the other operations of the arniy in (ieneral (iilmore's department in iW^. Mr. Russell then re-en- listed in his old organi/alion. which was .sent lo the Department of the James, and t<»ok p.irl in the sieges of Petersburg and the battles i)efore Richmond. During the winter of 1864-65 Mr Russell anpeared before a board of officers, convened for that purpose, and was reconnnended for I)romotion and commissioned a second lieuten- ;ini in Ihe Thirty-eighlh I'niled Slates Colored 924 History of the Bench and Bar of California. Troops. He was given the command of a company, and when the forward movement was begnn, led his company over the works and into Richmond, being among the first Fed- eral infantry to enter that city, except as pris- oners of war. After the close of the war, Mr. Russell was promoted to first lieutenant, and with the corps commanded by General God- frey Weitzcl, was sent to Texas. The corps performed duty along the Rio Grande, watch- ing the progress of reconstruction, and more especially observing the movements of Maxi- millian and his "imperial" army, and in readi- ness, if necessary, to enforce the Monroe doc- trine. The weakness of the new empire in Mexico, however, rendered any direct action unnecessary. Lieutenant Russell served suc- cessively as company commander, regimental and post quartermaster and aide-de-camp lo the commanding general, and was finally mus- tered out of the service March i. 1867. He had served in the armv more than five and a half years continuously. seek office. He is a member of the Odd Fel- lows, Loyal Legion, Grand Army of the Re- public, and other organizations. FRANK D. RYAN. This well-known lawyer and honored native son was born in Sacramento, May 11, 1859. He read law in the office of Hon. Robert C. Clark, who was afterwards County Judge for a long period. He was admitted to practice by the Supreme Court, in November. 1880. He was elected a member of the assembly in 1882, and served as such during the session of 1883 and the extra session of 1884. He was chief clerk of that body during the sessions of 1885 and 1887. Mr. Ryan was district attorney of Sacra- mento county from 1891 to 1899. In that of- fice he participated in the trial of many im- portant cases, among the number which at- tracted attention being the cases of People .-^-^iffiliStef,^ Once home again, our subject renewed his collegiate studies, and graduated in the year 1868, from the law department of the Chicago University, with the degree of Bachelor of Laws. He then studied law in the office of D. G. Hamilton, Esq., in Chicago. He re- moved to San Jose, California, in 1869. For two years he was deputy city clerk in San Jose, and for three years deputy county clerk. Since 1880 he has been actively practicing his profession, with what he modestly terms rca- sonaijie success. He has been engaged in the trial of many important cases. Mr. Russell is married and the father of a promising son and daughter, both grown and of whom he is justly proud. He has a happy home in the suburbs of the Garden City. He has for many years been a church member, and thoroughly believes in love to God and to mankind as a religion. He holds that it is the bounden duty of every citizen to give at- tention to politics as the safeguard of the country. He is a Republican, but does not vs. Dolan. People vs. Gardner, People vs. Jeffries and People vs. Palmer. His career as district attorney was highly successful, and he retired from the office with the highest com- mendations of the people of his county. Mr. Ryan has also participated in the trial of many important civil actions, among which may be noted Gillespie vs. Winn and Miller vs. Mayo. Mr. Ryan has been prominently identified with the organization and growth of the order of Native Sons of the Golden West. He was one of the incorporators of the Grand Par- lor and is a past grand president of the order. THOS. HENRY SELVAGE. Thomas Henry Selvage was born on the 22nd of .'\pril, 1857, in Orient, Aroostook county, Maine. His father was a lumberman operating on the head waters of the St. Croix river, the dividing line between Maine and New Brunswick. During the early life of T/^05. Henry Set'vage History of the Bench and Bar of California. 927 young Selvage, he followed the occupation of his father, attending the public schools when- ever the opportunity offered. In 1874 he came with his parents to California and located in Humboldt county. He attended the public schools at Areata, and afterwards spent a year in St. Louis College in British Columbia. Returning to Humboldt county in 1883, he commenced the study of law while working in the redwoods. He thus pursued his studies until the spring of 1887, when he went into the law office of J. D. H. Chambcrlin, where he remained until the spring of 1888, when he was admitted to the bar. He then commenced the practice of law at Eureka. He taught commercial law in the academy at Eureka for three years. In 1892 he was elected district attorney of Humboldt county, and served in that office for one term. He was one of the leaders in organizing the Humboldt cham- ber of commerce, and was elected its first sec- retary. Mr. Selvage is a Republican and has for years past taken an active part as a cam- paign speaker. He is a man of great en- ergy, an eloquent and forceful speaker, and a trial lawyer of superior ability. He has since youth been a great reader, his favorite studies being history, biography and current literature. He is married and has two children, a girl and a boy. T. H. Selvage received the Republican nomi- nation for State senator, September, igoo, for the First Senatorial district of California. During the campaign of 1900 The Califor- nian in its editorial columns, spoke of Mr. Selvage and his candidacy for State senator as follows : "Mr. Selvage is a lawyer of excellent stand- ing and practice here, a former district attor- ney, a cheerful, tireless and able worker in the cause of the party, a prominent candidate, two years ago, for the Republican nomination for Lieutenant Governor, and a gentleman in every way worthy of the honor conferred upon him. "To the best impulses of every workingman in this senatorial district, we apprehend, will the candidacy of Mr. Selvage powerfully ap- peal. It will appeal to the best impulses of all men who admire decision in resolution, per- severance in performance, inflexibility in the convictions and fearlessness in the inevitable conflicts. "By sheer force of character has Mr. Sal- vage risen from the ranks. Can we not in memory go back to the time when he was a laborer and worked in the woods ? Can vye not recall his battles with adversity? How, in the face of discouragements sufficient to appall one less resolute, he studied law, was admitted to practice, and in his chosen profession speed- ily achieved success? Than Tom Selvage there was never in the history of the First Sena- torial district a candidate more deserving. Pos- sessor of a pleasing personality. poi)ular. an indefatigable worker, an attractive, able and efi"cctive speaker, a irood lawyer, he could and would as State senator .serve the people of this district faithfully and well. The First district is Republican, but in this instance the party ought to be satisfied with no ordinary ma- jority; we should strive to render it over- whelming." In tile election which fi>ll<)wed on the 8th day of November, igoo, he was elected by an overwhelming majority. His own county gave him a majority of 2.341, this being the largest vote ever cast for any person in Humboldt county. During the session of January-March, IQOI, he took prominent part in all the matters com- ing before the legislature. The San Francisco Call correspondent thus refers to the Senator's first speech in the sen- ate, on January 30, 1901 : "Senator Selvage made his first speech be- fore the senate this morning, and so seductive was his eloquence that the senate added $1000 to his appropriation to welcome President ^Fc- Kinley, and passed his resolution with a rush. The resolution provided for a reception com- mittee composed of the President. President pro tem., secretary, sergeant-at-arms and five members of the senate and the speaker, speaker pro tem.. chief clerk, sergeant-at-arms and nine members of the assembly, and appropriated $1000 for the committee's expenses. This was amended to make the committee first provided a committee of arrangements and to make a reception committee of the whole legislature, with $2000 for expenses." Mr. Selvage assisted in the prosecution of Charles W. Bowden for the murder of Lillie M. Price, at Eureka, the accused being con- victed, and the last person to be hanged out- side of the State prison. Mr. Selvage was district attornej' at the time of the execution. The senator took the stump for Governor Gage in the State campaign of 1898. and for President McKinley in igoo. M. E. SANBORN Miles Edward Sanborn was born at Polo, Illinois, November ist. 1852. and was edu- cated in the public schools and at Rock River Seminary, Mount Morris, in that State. He read law at Polo with Hon. James C. Luckey, afterwards attending the I'liion College of Law at Chicago, graduating therefrom with the degree of bachelor of laws. June J.sth. 1874. and on the loth of September in the same year was admitted by the Sui)reme Court of Illinois to practice in all the courts of the State. In the sjiring of 1875 he establi^^lud an office at Dunlap. Iowa, and soon after was elected city attorney of that place In th« summer of 1878 he came to Californi.i and in January. 18S1. located permanently at ^'uba City. For two years lie acted as assist- ant to the district attorney of .Sutter county, and was then hiiii>ielf eh'cted to that oftice. which he filled with ability and zeal, giving; such general •■ati'^faclion that he wa>^ twice re-elected. In 1884 he revisited I'oio and there married I'ranccs M. Lurkey. the daughter of his former law preceptor. The marriage was a happy one and two bright children, daughter and son. ble>-< the union. I'pon the completion of his third term a.s 928 History of the Bench and Bar of California. district attorney in January, 1889, Mr. San- born built and removed into the commodious offices which he still occupies at Yuba City, and furnished them with one of the most com- plete libraries in that section of the state. Quiet and unassuming in manner, Mr. San- born vet possesses in a marked degree those elements of unswerving integrity, unflagging tice. Mr. Scheeline has acquired some repu- tation as an expert on the question of bonds of municipal and private corporations. His other specialties are probate and real estate matters. He has never held public office. His father was for two years a member of the San Francisco board of education. He is a mem- ber of a large number of fraternal and benevo- ^^ energy, and thorough knowledge of .the law, that bespeak the successful attorney. These qualities have earned for him a large clientage and the well deserved reputation of being a safe counsellor and a case-winner. In private life, as in public, he has always avoided dis- play, but has ever been ready, with voice and purse, to assist in any deserving public enter- prise or private charity. S. C. SCHEELINE. Simon Cleophis Scheeline is the son of N. Scheeline, and nephew of the banker, Daniel Meyer, of San Francisco. He was born De- cember 31, 1853, in Woodbury, Bedford county, Pennsylvania. He came to California with his parents in the latter part of 1856, and lived until July, 1859, in Gibsonville. Sierra county, where his father was engaged in mercantile business. He came to San Francisco, where he has since resided, in the same year. He at- tended private schools for four years : then entered Union gramtnar school, where he grad- uated at the end of two years, and then entered San Francisco high school. He graduated in 1869 from that institution in the English course. He then took the post graduate course for one vear in Latin and Greek. He entered the State University in 1870, and graduated therefrom in 1874. This was followed by a two years' course in the Columbia Law school. New York city, from which school he grad- uated in 1876, in the same class with Delaney Nichols, U. S. Grant, Jr., and Perry Belmont. Mr. Scheeline returned to San Francisco in 1878, and formed a law partnership with Judge Simon Rosenbaum, which partnership still con- tinues. The firm has an exclusively civil prac- lent associations, notably I. O. O. F., A. O. U. W., National Union, General German Ben- evolent Society, Altenheim, Eureka Society, and the San Francisco Verein. ■! DENVER SEVIER. Denver Sevier was born February 19, i860, the son of one of the early pioneers, who was elected sheriff of Humboldt county for two terms. He commenced the practice of the law in 1889. being thoroughly prepared therefor by study and a four-years' service as chief deputy in the county clerk's office of Humboldt county. He belongs to the Odd Fellows and to the Native Sons. He conceived History of the Bench and Bar of California. 929 the idea of having the grand parlor of Native Sons meet in Eureka. This grand body of young men numbers nearly 350 members, con- taining some of the brightest minds in the State. Mr. Sevier went to Sacramento and presented the claims of Eureka to the grand parlor, and that body voted two to one in favor of Eureka as against San Jose. The meeting of the grand parlor was one of the best attended and most enjoyable ever held in the history of the order. Mr. Sevier is a hard student and believes in keeping well to the front in the profes- sion. He has a large, up-to-date law library. Of marked success at the bar. and known gener- ally as a hard worker, it is often said that if anybody can dig out the law, he can. He is retained in some of the most intricate liti- gation in his county. He and his law partner, T. H. Selvage, Esq., recovered the largest verdict ever obtained from a jury in Humboldt countj', namely, $22,632. Mr. Sevier is retained by the Eel River and Eureka Railroad Company in its present liti- gation in regard to the route along the water front of the city of Eureka. ERNEST SEVIER. Ernest Sevier was born in Humboldt county, California, on the ist day of June, 1856. He was admitted to practice before the Supreme Court of this State on January 4th, 1884, and has since been actively engaged in the pro- fession at Eureka. He has also been admitted to practice before the different Federal Courts. Our subject is an active and energetic attorney, who makes the cause of his clients his own, and who never loses a case through his own fault. His practice lias been gen- eral, though he is considered specially strong before a jury. He is married and has an interesting family of children— five boys and one girl, ranging m age from one to ten years. He is a Repub- lican in politics. Some of our readers will doubtless recall the interesting exploit of this gentleman in causing a large and elegant house to be removed from Areata across Humlx)ldt bay to Eureka, a distance of twelve miles. This was accomplished by lashing together two large jetty lighters, which were used in con- veying rock to supply a government contractor on the jetty at the entrance to Humboldt bay. The removal was accomplished without accident, and our advocate and his family have ever since occupied the house as their permanent home. GEORGE D. SH.\DBURNE. George David Shadburnc was born in Brcn- ham, Texas, June 13. 1842. He comes of old English and French ances- try. The town of "Shadburne." in Essex. England, was named after some of his paternal ancestors. His great grandfather. .\mos Shad- burne, settled in Louisville. Kentucky, early in the eighteenth century. His grandfather. Wil- liam Shadburne, settled in Bardstown. Ken- tucky, about the beginning of the nineteenth He claims relationship with the Sevier family of Tennessee, whose ancestor. Gen. John Sevier, was the American General at the battle of King's Mountain during the latter , days of the Revolution, and was afterwards the first Governor of Tennessee. Mr. Sevier's father was one of the first . settlers in Humboldt county, where his widow and three sons still reside. ceiUury. and llun- niarriid .Mi>s Friulenci- Merrimoe, whose fannly had just arrivi-d frnm France. His fatluT, William llriuy llariisnn Shad- burne, at the agi- (if cighUHii. wont to Texas and joined in the Texas KcvoliitiMii. in which he had numerous hairbreadth escapes, anil was eng.iged in many battles, being in at the close, at the battle of .S.m Jacinto. He married Miss Eliza Miranda Wheeler, from Mi>;> under the firm name of Houghton. Si- lent & Campbell. Judge Silent's life has been one of eminen- success. Not only from his law practice has he always gathered rich returns, but he has made many business ventures which resulted very differently from that little loan of 1.862. While a law student in San Francisco, and later while a teacher in Santa Clara, he sup- plied the general government with cavalry horses. In 1868 he procured from the legisla- ture a franchise to construct the first street railroad in Santa Clara county, running be- tween San Jose and Santa Clara. He and his associates completed the road in the followim: year. The franchise was for twenty year.s. The cars run along (he famous ".Mameda" through trees planted by the Fathers a hundred years ago. Governor Haigbt. in considering this proposed franchise, was himself silent, and it btcame a law without his action, .\ccording lo an act passed at a later .session, the ".Ma- meda" would seem to be 115 feet wide. (Laws of 1871-72. page 367.) In 1S74 Judge Silent was made the presi- dent of the comiiany which started the narrow- gauge railroad which runs from Santa Cruz •icross the mountains to Oakland: and the first section from Santa Cruz \o Fellon. inchwling the wharf and street railroads at Santa Cm/, were built muler his superintendence. This is one of the most instructive lives to consider in all this history, if we duly observe its free- dom from fever' and its calm, healthful and nnfiagging purpose from its very childhood l)ud. . . ,, Judge Silent is a ili.>^tinguished citizen, all 934 History of the Bench and Bar of California. apart from liis profession and his varied busi- ness interests. He has great pubhc spirit. While living at San Jose he was one of the first act- ors in the good roads movement, which gave to that locality its beautiful ways, including the drive to Alum Rock Park and the road to Mount Hamilton. Since removing to Los Angeles he has been identified with all enterprises for the public good or the advancement of the city. He has been a member of the Chamber of Commerce since i8go. In 1897, when unemployed men, in large numbers, were parading the streets, without food and unable to obtain work, he started the movement, through the Merchants and Manufacturers' Association, to relieve the distress. L'nder his direction a fund of $27,- 000 was raised, which was expended in con- structing the beautiful entrance to Elysian Park, thus providing employment for the needy. The labor was done under his personal su- pervision. They say in his city that in this un- selfish service he neglected his private business for two months, and often arose from bed be- fore daybreak to visit the spot where work was going on. 1 he Merchants' and Manufacturers' Asso- ciation, in recognition of his good work in this matter, made him an honorary life member, and presented him with complimentary resolutions, beautifully engrossed. The Los Angeles Exp>-rss, at the time this undertaking was being carried out, had these remarks in its editorial column : "Judge Charle^ Silent has endeared himself to the workingmen of Los Angeles by his acts within the last few weeks to an extent that will make his name to be honored with new light for many years. Others have been equally active in the relief of the deserving poor by providing them honest employment, but it does not detract from their efforts in the least to refer to the dignified and helpful course that Judge Silent has been pursuing in the cause of humanity with such marked results. It does not tickle the vanity of men of the Silent stamn to say a word of grateful appreciation, for he has shown a spirit broad and unwav- ering toward those in need, and so free from self that there must be but little in his nature that we could touch with flattery. Wealth often sweetens and mellows human nature, and those who have enough and more of this world's goods than they need are in many cases the possessors of big hearts, and intellects to direct charities so that the recipients do not feel the burden of unrequited favors, or the dis- pensers the burden attendant upon misdirected assistance." In the general judgement of the bar. Judge Silent is a sound, safe, conservative lawyer of a high order of ability. The present excellent judges of the Sunerior Court of Los Angeles concur in this estimate. In argument he never declaims, hut is always pointed and sensible, successful before juries, but more effective and more at home before and addressing the bencn. The Judge has been twice married. His first wife was the daughter of Rev. John Daniel of Santa Clara, whom he married in 1864. She died in 1870. In 1872 he married the daughter of M. Tantau, an old citizen of Santa Clara county. There is a large family of sons and daughters, a number of them grown, some of the daughters married and some of the sons in business. The Judge's home in Los Angeles is one of the finest in the State, and with most attractive surroundings. He has accumulated a large fortune, as the reader has already inferred. C M. SIMPSON. Hon. C. M. Simpson. State Senator for Los Angeles county, was born in Rockville. Ind.. on December 9, 1844. He went with his par- ents to Kansas in 1857. In June, 1861, he en- listed in the Union army, serving as a scout and on all kinds of independent duty until September, when he enlisted regularly in the Ninth Kansas volunteer cavalry. He served tmtil April 12, 1865, when he was mustered out and returned home, having given four years in all to his country's service. He then went upon the farm and worked until 1868. In that year he married. In 1869 he moved into lola,. the county seat of Allen county, and entered mercantile business, which he very soon aban- doned on account of failing health. From 1870 to 1878 inclusive, Mr. Simpson held the office of clerk of the District Court of Allen county, being elected by the Repub- licans for four successive terms. He was also a member of the City Council of lola for four terms, was mayor for one year, and school district treasurer three years. In 1877 he was appointed postmaster at lola, and held the office for nearly ten years. Senator Simpson was admitted to the bar in 1877, and afterwards served two terms as city attorney of lola. He came to California in 1886, and has always since lived and fol- lowed law practice in Pasadena. In this State he has been as active and conspicuous not only in the profession of law, but also in public life as he was in Kansas. He was president of the Republican Club of Pasadena in 1888. and a member of the City Council in 1889. He was a member of the assembly in 1893, and in 1894 was elected a State senator and re-elected in i8g8. his present term running to January, 1903. At the session of 1897 he was chairman of the senate judiciary committee. At the ses- sion of 1893, in the assembly he opposed the resolution that favored the free and unlimited coinage of silver. In this State, Senator Simp- son was first admitted to practice law in the Superior Court of Los .Angeles county, and afterwards was admitted in the Supreme Court upon his certificate of admission to the Su- preme Court of Kansas. The senator's record, as thus briefly written, shows him to be a lawyer and legislator of exceptional ability and experience. WILLIAM 1). STEPHENS. This gentleman is a I)r(ither of ex-Judge A. M. Stephens, a notice of whom is on another page. He was born in Jackson. Tennessee, in C. N. Sterry History of the Bench and Bar of California. 937 1843, and came to California, settling at Los Angeles, in June, 1875. He has always since been engaged in law practice in that city. He was admitted to the bar in Memphis. Tennes- see, in 1868. His residence since 1878 has been in San Gabriel, near Los Angeles. Mr. Stephens is a commissioner in bank- ruptcy. He married, in 1890, Miss Antoinette Washington Dorsey. daughter of Dr. Fred- erick Dorsey, of Hagerstown, Maryland. C. N. STERRY. Clinton Norman Sterry was born near Ash- tabula, Ohio, April 8th, 1843. He was the son of DeWitt Clinton and Elvira Miller Sterry, and was taken by them in infancy to Norwich, Conn., where he lived till he reached his thir- teenth year, when the family moved to Lake City, Minn. Here he grew into young man- hood. He went to Oberlin to school, in 1860- 61. He had been in school less than a year when that shot from Fort Sumter fired the land, and he marched out with that "tooth- brush brigade" which belonged to the Seventh Ohio, to take his part in the titanic struggle coming on. He served for one year and a half, and was sent home to die, but even at this age was a hard man to beat. In a few months he had reversed the decision, and, gaining a new trial organized a company, and re-entered the army as Captain of heavy artillery of the First Min- nesota, serving until mustered out in '65. He subsequently studied law at Ann Arbor, Michigan, and was admitted to the bar in Lake City, Minn., in 1868. For five years he divided his time between the practice of law- went to Cotton\vood FaIls,_Xajisa.'i, avhen he' and his dog and gun, discriminating largely in favor of the last two. In March, 1873, he began earnest work that took him. in the June following, to Emporia, Kansas. He was soon made a partner of the firm of Ruggles & Plumb, perhaps the strongest firm in the State. From this time Captain Sterry rose rapidly in public notice and estimation. He was rec- ognized by the public as a strong, keen, tireless worker, and in private, by all who knew him, as an honorable, generous, loyal friend. The Captain was appointed as a Santa Fc attorney in 1882, and has been acting in that capacity up to the present date. He was appointed general attorney for that road for New Mexico in January, 1892, and became so- licitor for the road west of Albuquerque in the summer of 1896. It was in October, 1896, that Captain Sterry went to Los Angeles, to make his headciuarters and home in that peer- less city, where he has since become so promi- nent at the bar. In September, 1899, he was appointed gen- eral attorney for the Valley road. He has won for himself in California the same "golden opinion from all .sorts of men" that he won in Kansas. All who know him speak of him as honest, able and leal. A lawyer who has had thirty-three years' ex- perience at the bar and on the bench, and who during the greater part of that time has been acquainted with Captain Sterry, says this of him : "Captain Sterry received his title of captain in the Civil War, in which he commanded a battery with distinguished ability. After the war he practiced law in Emporia. Kansas, with a prominent lawyer named Ruggles, under the firm name of Ruggles & Sterry, The partnership became a celebrated one owing to the abil- ity of both members, but Sterry was essen- tially the lawyer of the' firm. His opinions on questions of law were trusted on any sub- ject he investigated. He became particularly skillful in the trial of cases, and was success- ful before court or jury where success was possible : — so much so, that his services as a trial lawyer were in demand throughout a great part of the state, and to a considerable extent in important cases in adjoining states. His suc- cess at the bar was extraordinary, and called the attention of the officials of the Atchison, Topeka & Santa Fe Railway Company to him and his career as an advocate, and he became the counsel of that corporation through merit alone. His strength as a trial lawyer lies first in his great ability to get at the very meat of the matter in controversy; next in his untiring industry in the preparation of his cases, both as to the investigation and presentation of his facts and law ; third, in his imperturbability of con- duct during a trial, and his direct, forceful and logical presentation of the pivotal facts and turning points of the law, either to court or jury. His tone of voice is never harsh or dis- agreeable, but pleasing and impressive. In the conduct of the trial his opponent may quar- rel with the judge, but Sterry, never. Polite, insistent and shrewd, he yet invariably main- tains his dignity, and secures the good will and respect of the court. "Having had but one line of legal work for many years, he is not known to the bar gen- erally, but he is, in fact, one of the ablest and strongest trial lawyers of the entire .\nier- ican bar. perhaps having no superior anywhere as an advocate. His probity and uprightness of character, both as a lawyer and citizen, are beyond all (piestion." JOIIX P. STRO'lHER. This gentleman was born in Kentucky on February i(). 1837. Me was educated in the common schools, and was graduated from the law department of Louisville University in 185S. He began the practice of law in Saline county, Missouri. He was very successful at the bar. and also held many public offices. He was county attorney for many years, and in 1872 was elected stale senator. At the second session of that body in which he served, he was chairman of the judiciary committee. Later he was elected Judge of the Sixth Circuit of Mis.souri. and served tlie full term of six years, ending in January. 1SS7. He declined re-election. Just before he left the bench, the bar of Lexington met and passed resolutions expressing hearty appreciation of his inipar- 938 History of the Bench and Bar of California. tiality as a Jiido-c. his thoroughness of in- vestigation, and his eminent abiHty. Judge Strother removed with his family, in 1892, to Fresno, CaHfornia, being charmed by the cHmate and the great raisin industry there, having spent the previous winter at Fresno himself, where his son, Sidney L. Strother, re- sided. Since then he has been engaged in the practice of law. He was chosen the first pres- ident of the Fresno Bar Association a few years since. He and his son before-mentioned were partners of Mr. J. R. Webb, until that gentleman became a Judge of the Fresno Su- perior Court. Judge Strother is an influential member of the Methodist Church, South. He has filled many important places of trust, both in the local church and the general church. He has been three times a member of the General Con- ference, the law-making body of the church — at Louisville in 187'. at Memphis in 1894. and at Baltimore in 1898. At the latter session he was chairman of the committee on "publishing interests." FRANK M. STONE. The story of Mr. Stone's nfe possesses ex- ceptional interest ; there is much that is strange and much that is picturesque, in both his per- sonal and his professional career. It will add a pleasant chapter to our History. Frank M. Stone was born March 12. 1847, at a small town near Concord, in New Hamp- shire. In his infancy his parents removed to Boston. Mass., where his father acted as a fiduciary agent for heirs of estates in probate, and was elected to the legislature. He, the father, at the time of his death, which occurred in 1881, was chairman of the joint legislative committee on corporations. Among his close personal friends was Hon. John D. Long, now Secretary of the Navy, who was then Governor of Massachusetts. Mr. Stone's early education was obtained at the academy in Royalton, Vermont. He there- after was graduated from the Boston English and Classical Schools, and finished his educa- tion under private tutors. He commenced the study of law under the directions of his father in the early seventies. His health becoming impaired, he shipped as supercargo of a sailing vessel, making several voyages to the Azore Islands, also to the West Indies and to Europe. ills life at sea was full of adventure, includ- ing the wrecking of his vessel and his drifting alone in mid-ocean for an entire night off the Island of St. Michaels. It was followed by a most exciting trip from Petersburg. Virginia, to Mobile Bay, Alabama, while negotiations for peace were in progress in 1865. and before transportation by rail had been resumed. He took up his studies again in the backwoods of Alabama, and m the uplands of Georgia, liv- ing on what he could obtain by foraging. Mr. Stone came to California in 1874, and finished his course of study in the office of Colonel Joseph P. Hoge. the Dean of the Cali- fornia bar — spending the years 1878-79 in his office. "A particularly pleasant period was that," he unce said to us. He was admitted to the bar by the Supreme Court of this State in the spring of 1880. He was deputy district at- torney of the city and county under Hon. Leon- idas E. Pratt, in 1882, and • continued to act in that capacity until December, 1882, when he resigned. He thereafter formed a law part- nership with Hon. A. A. Sargent, ex-Minister to Germany, and ex-United States Senator, and such partnership continued until Mr. Sargent's death in August, 1887. While Mr. Stone held the office of deputy district attorney, he prosecuted many notable cases, among which was that of Maroney for shooting Judge D. J. Murphy in open court. Judge Murphy, who had not yet become Supe- rior Judge, had, in defending a man in the Police Court, awakened the wrath of Maroney by his cross-examination of the latter, who was a police officer, and the prosecuting witness. Judge Murphy's life hung in the balance for some days. During the progress of the Ma- roney trial a peculiar incident occurred. The case had taken several months to try, and, at its conclusion, was submitted without argu- ment. The jury retired and, after being out two nights and a day, came into court and re- quested counsel to argue the case. Henry E. Highton represented the defense. Court and counsel being content, the jury was brought in and the case was argued for three days. The jury again retired — the result of their bal- loting for something like four days, being seven for conviction and five for acquittal, the vote never having changed for one ballot. The case of the People v. Carl Johansen was one of peculiar private and public concern. The defendant was a sailor, and, while being shipped by his boarding-house master, one Sanders, both being Swedes, Johansen shot Sanders, killing him instantly. Throwing his pistol into the bay, he shouted, "I have killed a shark." Upon being placed upon trial his counsel interposed the plea of insanity. The defendant was adjudged guilty and sentenced to death. His peculiar appearance during the trial so affected Mr. Stone that he went to see him personally at the county jail, after his con- viction, particularly inquiring about a scar upon his temple. The man replied through an interpreter that the scar was from a pistol ball and that the bullet was then in his brain. Inquiring regarding his family, Mr. Stone be- came satisfied that the history of his life had not been brought out upon his trial, and that, possibly, the defense of insanity should have prevailed to the extent that the punishment should have been imprisonment, rather than death. Not being able to obtain the address of any of his people, but only the fact that he was raised in the province of Kalma. Sweden, the attorney wrote a history of his trial and directed it "To any friend or relative of Carl Johansen. Kalma. Sweden." It brought a reply from the Governor of the province, praying to have the execution delayed until the story of Joliansen's life should be laid before the court. Judge Freelon. the then presiding Judge, granted the request for delay, and the Frank cM. Stone Histoiy of the Bencli and Bar of California. 941 facts as appeared from the evidence taken by the Government of Sweden, showed that the defendant had in his native land, attempted suicide by shooting himself in the head, that it was true that the bullet still remained in his brain, that he had escaped in the dead of win- ter from an insane asylum, clothed only in such material as he could obtain by cutting up and using fur rugs. He jumped from a two- story window, gathered clothing in one place and another, and shipped before the mast for San Francisco. His mother and two sisters were in an insane asylum, and the father was a subject of epilepsy. Mr. Stone was still in office, and with these facts before him, he called the jury together, re-submitted the facts, and by unanimous vote they requested the Governor to commute the sentence to life im- prisonment. Governor Stoneman acceded to the request. Johansen was sent to San Quentin and within three months was removed, a rav- ing maniac, to the asylum in Napa, whence he shortly escaped, and it is supposed that he perished in the mountains, as remains of a per- son answering nis description were found some months afterwards. The Swedish Society of San Francisco, and the Government of Sweden took action, extend ing their thanks to Mr. Stone, both personally and in his official capacity. The peculiar Chinese case of People v. Tarm Poy, is known in the criminal annals of the State as the "Hatchet Case." The facts are as follows : On the corner of Dupont and Jackson streets, the most brilliantly lighted cor- ner in L,..inatown, San Francisco, one night at about ii o'clock, a Chinaman was assailed by a "hatchet man" and the autopsy showed seventeen frightful wounds made by a hatchet, any one of which would have proved fatal. The assailant fled, leaving behind him on the scene of the tragedy, a hat. The present Police Captain Wittman was then a sergeant and in charge of the Chinatown squad. He ascer- tained that the murderer had fled along Du- pont street for about twenty-five yards, dis- appeared up a stairway and no trace of him was thereafter discovered, nor was any one found in the building who could be in any way implicated in the perpetration of the crime. At the head of the first flight of stairs, the sergeant found an open window. At this point of his investigation he was informed that the relatives of the deceased suspected one "Tarm Poy," who lived in Washington alley, as being the criminal. The sergeant within two hours of the killing visited the dwelling place of Tarm Pay and arrested him. Asked to produce his hat, he could not do so, and upon the hat. which was found upon the scene, being placed upon his head, it fitted perfectly. Sergeant Wittman. placing the hat and Tarm Poy in charge of an officer, retitrned to the stairway before referred to, and getting out of the win- dow, proceeded over the various intervening houses and finally ascended a ladder and reached a sky-light, which being open, he de- scended through it to the room in which Tarm Poy had been found when arrested. The fight between the friends and relatives of the deceased and of Tarm Poy became most intense. The deceased was of the "Fong fam- ily." Books were circulated over the State. It was found that 4000 of the family resided here; and the entire number subscribed to defray the expense of prosecution. At this point Mr. Stone was specially retained, hav- ing long since ceased to hold official position, to prosecute the accused. A dramatic inci- dent occurred during the trial. The Chinese vice-consul having been subpoenaed to testify, the Chinese interpreter for the Fong family suggested that, as sometimes a Chinaman printed hs name on the inside band of the hat, the consul be requested to turn down the band of the hat, which was found on the scene of the tragedy, to ascertain if any identifying mark could be found thereon. After an exam- ination, the witness testified that he found the name of Tarm Poy in Chinese characters writ- ten on the band of the hat. It was shown that the hat had never left the possession of the police from the time it was picked up on the street. With this chain of circumstantial evi- dence, the defendant was promptly convicted and sentenced to death. The case w'as ap- pealed by the eminent counsel, D. M. Delmas, who. raised many and most interesting ques- tions of law. The appeal was unavailing; the judgment was affirmed. .\t this point of the proceedings the Fong family was so grateful to Mr. Stone for the outcome of the case, that each member of the family then known to reside in California, was appealed to; and by contributions in sums rane-ing from five cents to twenty dollars, gave him. in addition to a large money fee, a solitaire diamond for which they paid one thousand dollars, and which our friend still wears triumphantly, notwithstanding the se- quel. At this point Hon. S. M. Shortridge ap- pealed to the Governor for clemency. After various kinds of arguments, at which, however, Mr. Stone was not present. Governor Water- tnan pardoned Tarm Poy "upon the condition that he leave the State." The records show that Tarm Poy lost no time in availing him- self of the privilege. The strangest part of the story remains to be told. Something like a year afterward, the chief man in charee of the prosecution as rep- resenting the Chinese, and who furnished the testimony and produced the witnesses at the trial, confided to Mr. Stone that "it did not make much difference, because Tarm Poy was not the man who committed the murder." He said that it was a part of the Chinese religion that when a man of a particular family was murdered, a member of .some antagonistic fanuly must answer therefor with his life. In this instance, they had seized upon the infor- mation gained from Sergeant Wittman and had concluded that Tarm Poy came nearer filling the hill of a victim than any one of whom thev had knowledge, and they had woven arotmd him a mass of circumstantial evidence almost unparalleled in criminal jurisprudence. He then and there told Mr. Stone that while the coroner's inquest was in progress and the 942 History of the Bench and Bar of California. hat was lying upon the table at the morgue, he having deftly secured a Chinese printing brush in his sleeve, had printed the name of 1 arm Poy in the band of the hat under the very nose and eyes of the police, and had not been detected therein ; that he was satisfied that another man had committed the murder, but having no evidence to substantiate the be- lief, had determined upon the sacrifice of Tarni Poy. In narrating these facts to us in conversa- tion some years afterwards. Mr. Stone said, "I have never taken a Chinese case since that trial." This history is given for the first time, and will be a matter of considerable astonishment to the other learned counsel, who practically agreed that the defendant was guilty. Among the civil cases of marked interest and which have been cases personally conducted by Mr. Stone, was that of Cook v. Pendergast, (6i Cal., at page 72), which we believe is accepted as settling the law and practice as to change of venue, fhe point raised never hav- ing been before advanced, the case stands as the leading one upon the question therein in- volved. The Estate of Flint, 100 Cal., page 391, has been much cited in the matter of contests of will, wherein the questions of undue influence and incompetency are raised. The case must be particularly pleasant to him on account of the express compliment therein given him by the court as to the manner of the preparation of the bill of exceptions. The case of Humphries v. Hopkins calls for mention, because it lays down the law as far as this State is concerned, regarding the rights of a local creditor as against those of a re- ceiver of a foreign court, who has taken pos- session of property within the jurisdiction of the court appointing him receiver. It is re- ported in 81 Cal., 551. The estate of William H. Moore, deceased, wherein for the last sixteen years Mr. Stone has represented the children of Moore as against the claims of his second wife, the step- mother of the children, probably covers a longer period of time in the matter of litiga- tion than any other reported in our State. William H. Moore died in 1870. leaving a lar«e estate, which has now been in litigation thirty years ; it has been before the Supreme Court in its various branches between fifteen and twenty times, and can be cited as authority upon more points of probate law than any other. Judges from all parts of the State have passed upon various questions raised. Two of the original counsel in the case have become Superior Judges, and died. At least five of the several judges who have participated in the various branches of the case have died. Chil- dren and grand-children of William H. Moore have been born and reared since 1870. Some- thing like sixty oi" seventy thousand dollars has been spent in litigation, yet .strange to say the estate today remains intact and of greater value than when Mr. Moore died. Taken as a whole, it is a remarkable probate case — the strangest part of which story was its culmina- tion in the year i8gg. Then, after twenty-nine years of litigation, it was decided that the most valuable part of the estate never belonged to William H. Moore, but was the property of his first wife, who died one year before Moore, and by the decree of the court the children of the first wife now receive in value after thirty years of litigation, more than the amount for which the entire estate was originallj- appraised in 1870. We have no space left to speak of the polit- ical events with which our subject has been connected, during his partnership with Senator Sargent, and the well-remembered Stanford- Sargent contest, nor to his traits of personal character, except to say that he is a man of intense loyalty to friends and unwavering fidelity to purpose. He is in full practice, with elegant offices in the towering Claus Spreckels building. He is married, but has no children. He joined the Free and Accepted Masons in 1868 on becoming of age, taking during that year the various degrees up to and including thr.t r': Ilnight Templar. FRED. H. TAFT. Fred ti. Taft was born in Picrrepont Manor. JefTerson county. New York. April 4, 1857. With his parents he removed to Iowa in the spring of 1863, where his father. Rev. S. H. Taft. founded the town of Humboldt, Hum- boldt county, and also established Humboldt College, from which institution the son grad- uated in 1878. From June. 1874, while pursu- ing his studies, he conducted the Humboldt Kosiiius, the official county paper, which he continued to edit until he sold the plant in the fall of 1882. The next spring he became one of the founders of the Hardin County Citizen, at Iowa Falls, Iowa, which paper he disposed of early in 1884 to accept the manage- ment of the Fort Dodge, Iowa, Messenger. This employment he relinquished in 1887, and in the next spring he located in Siou.x City, Iowa, where for more than four years he was with the Sioux City Newspaper Union. It was during the latter part of this period that he reverted to his original intention of studying law. and took up the work, being admitted to practice by the Supreme Court of Iowa in May, 1892. He thereupon formed a law part- nership with P. A. Sawyer, which was dis- solved on Mr. Taft's removal to California in the following January. In the fall of 1893 Mr. Taft located in Santa Monica, and soon resumed his practice, on forming a partner- shin with R. R. Tanner, city attorney, under the firm name of Tanner & Taft. This firm is now one of those enjoying a wide acquaintance and practice, whose demands rendered the es- tablishment of a Los Angeles office a neces- sity late in 1897, and the two offices are now maintained. Air. Taft was married in 1881 to Frankie M. Welch, at Humboldt. Iowa, and a son and daughter share the comforts of their seaside home. History of the Bench and Bar of California. 943 EDAIL'ND TAUSZKV. Mr. Tauszky came with his i)arents to the United States from Hungary, in i8()6, being but a child at the time. His eldest brother. Dr. Rudolph Tauszky. had preceded tlie rest of the family, and was well settled in New York City as a physician. He was resident phy- sician at Mt. Sinai Hospital, and had been a surgeon in the United States Army. He was also a medical author of repute. He died com- paratively young, but lived to see his brother, our subject, establislicd in law practice in San Francisco, and to make him a l)rotlK-rly visit there. Mr. Tauszky attended school in New York for some years, until his mother's death, which occurred in 1869. He then went to St. Louis, where he had a married sister, and where he finished his education. Thereafter, to perfect himself in commercial studies, he attended the Jones Commercial College of St. Louis, which awarded him a diploma. Mr. Tauszky came to California in 1876. Locating at San Francisco, he became clerk in the law firm of Wallace, Greathouse & Hland- ing, which was sticceeded by Pillsbury, Bland- ing & Hayne. He was in that ofiice from July, 1879, until his admission to the bar, in 1885. He had during this period been a dili- gent student in the Hastings College of the Law. He has been industriously occupied at the bar of San Francisco ever since his ad- mission. In the years 1887-88-89 he was also a court commissioner of the Superior Court. Mr. Tauszky and Mr. T. J. Lyons are the reporters of the decisions of Hon. James V. Coffey, the honored and distinguished Superior Judge of San Francisco. The first volume of these reports appeared in 1888. In 1893 he formed a partnership with Hon, W. E. F. Deal and George R. Wells, under the firm name of Deal, Tauszky & Wells. This association still exists, and has always done a large and general law business. A sketch of Hon. W. F. F. Deal is on another page. CAMERON E. THOM. Captain Cameron \\. ilium, relired patri- arch of the bar of Los Angeles, is a native of Virginia, born in Culpeper county, in 18J3. He came to this State in 1849, in the service of the Federal government, for the juirpose of taking testimony in land cases before lion. George Burrell, United States commissione'- for the Los Angeles district. His oflicial w'>rk- being accomplished, he remained in Los .\ii geles, which has always since been his home. He followed the practice of law for more than a quarter of a century, with continued suc- cess, invested in lands, and long ago becam.' possessed of considerable wealth. Tn the early days he was city attorney of Los Angeles, aiil district attorney of the county. He was Stale sen.i.tor for the district comprising Los .\n- geles, San Diego and other counties, at the ninth and tenth sessif)ns of the legislature, when that body met annually, in 1858 and 1859. His politics were, and still arc. neiim- cratic. He has also been mayor of Los An- geles. This venerable and respected citizen, who i.- further referred to in the sketch of Judge E. AL Ross, long ago retired from the bar. He was one of our ablest lawyers, and is a man of fine attainments in general scholarship. CHARLES W. THOMAS. Charles W. Thomas was born near Vana- l)urgh. Kentucky. October 29. 1852. When a child of five his parents removed to Missouri, where he spent the years of his childhood, youth and early manhood. He was brought up cfn the farm, where his contact with nature developed and matured a naturally strong and vigorous body. The country at that time offered very in- ferior opportunities for education ; a few months in the year for a very few years, con- stituted the sum total of his school life until he was seventeen years of age. Ambitious. I)lucky and precocious, he was not daunted liy lliese (liscouragements. When ;i mere child he overheard his father say to one of the neigh- bors one day that "Charlie was a bright boy. :in in ;i neighboring state. Il was not iiniil the lad was a man in stalme that peace- ful i)ursuits after the war made it possible tn allempi to realize his ambition, lie earned what he could on the f.irm. aside from the ser\ ice which he owed his father, ami with this scanty stock, went forth into the world to procure an education. He itii.trd ilu- Kirk* 944 History of the Bench and Bar of California. ville, Missouri. Normal School. After spend- ing in one brief term of ten weeks his slender means, he returned to the farm to replenish his store. And thus, alternating labor, physical and mental, he reached a degree of equipment which enabled him to conduct successfully a graded school at White Cloud, Kansas, as principal. He completed the four years' course of the normal, in two and one-half years, a feat of labor never before performed in the history of the school, and prol)ab]y never equalled since. The two years succeeding his graduation were spent in teaching, as principal, at Shel- Dina, Missouri, always with the cherished ex- pectation of qualifying himself for the law. He read a number of legal treatises during the time : and in the short space of six months after goin? from the school room, was ad- milled to the bar in St. Joseph. Missouri, in 1878. He practiced law five years in Oregon, Missouri, when, his health failing, he came to Woodland. California, in 1885. where he has been actively engaged in practicing law ever since. Mr. Thomas' life is a monument of what industry, frugality and perseverance can achieve over the most unyielding obstacles. His marked success should be an inspiration to every young man of right principles and char- acter. Never having spent a day reading law in any man's office, or under any man's direc- tion, or in any law school, he can be said to be self-made in the fullest sense. During his twenty years' practice no less than thirteen young men have been admitted to the bar, exclusively through his office, and under his direction and training. He finds time in the midst of unusual pro- fessional activitv to devote to all public in- terests and enterprises, whether as president of the Chamber of Commerce, or on the executive committee of the Sacramento Valley Develop- ment .\ssociation. While never seeking political preferment, and never having stood for office, he has not been indifferent to political issues and meas- ures, and has discharged the duties of citizen- ship with the same faithfulness and capa- bility which characterize every effort he makes in whatever field. He has been instrumental in building up public libraries, establishing lit- erary soci'cties, and in the most marked way advancing the literary and intellectual tone of the community where he lives. He is a married man ; has two children, the eldest, a son. in Stanford University. J. W. TURNER. This gentleman was born on September 8, 1848. at Merigomish. Pictou county. Province of Nova Scotia. He spent his boyhood days on the farm. His parents were Scotch Pres- bvterians. whose strict teachings left a lasting impression on his mind. He received his earlv educational training in the Merigomish High School, to attend which he had to travel two miles, and in the winter facing the northern blast with the thermometer frequently down to twenty degrees below zero. At the aee of sixteen he passed the examination held for teachers in the common public schools, and taught for two years. In the winter of 1866-7 he attended the Pictou Academy and took the full classical and philosophical course, under Professors Bavne and Jacks. Again he taught school in order to obtain money to prosecute his studies, and thereafter, in 1868-9, he at- tended the medical department of Dalhousie College and University at Halifax City. The practical knowledge there acquired in the dis- secting-room and laboratory- became of use in after years in the trial of cases involving inju- ries to the person, suits for malpractice and where death resulted from poi,son. In 1870 he read law under the directions of Hon. Martin Isaac Wilkins. Queen's Coimsellor, and thus became acquainted with the elementary prin- ciples of the common law. In December. 1870, he visited friends in California and concluded to remain. He engaged in mining in Sierra and Plumas counties, but, like many others, failed to find the "blue lead." In 1877, he received se- rious injuries in a cave at Potosi. and while re- covering entered the law office of Clough & Kel- logg at Quincy, Pliunas county. By close ap- plication and the aid of a most remarkable memory, he made rapid progress in his studies, and on December 8th. 1878. was admitted to practice before Hon. G. G. Clough, Judge of the Twenty-first Judicial District. Shortly after this he opened an office at the mining town of LaPorte. in southern Plumas. Tlie adoption of the new constitution affected the attorneys throughout the State, and Judge Sawyer's injunction in the case of the farmers against the miners shut down many mines in the northern section, thus seriously interfer- ing with the practice of the mining lawyers. Having little to do except to read text-books, many of which he borrowed from Jud^e Clough, he mustered up courage, and UDon a certificate signed by Creed Haymond and Geo. A. Rlanchard. presented himself for examina- tion before the Supreme Court "with fear and trembling." On May nth. 1880. he was ad- mitted to practice in all the courts of the State. On July i6th. 1883. on motion of Judge History of the Bench and Bar of California. 045 Waldo M. York, he was enrolled as an attor- ney in the Circuit Court of the United States for the Ninth District of California. In No- vember, 1880, he moved to Oroville, Butte county, and shortly after entered into partner- ship with the late Judge Burt and ex-Attor- ney-General Joe Hamilton. The death of Judge Burt dissolved the partnership. Mr. Turner's fiery denunciation of an act of the presiding judge led to strained rela- tions, and he burlesqued a decision of the judge on a question of title to mining ground by pretending to locate the townsite as a min- ing claim. The judge reversed his ruling but Mr. Turner refused to further practice before him, and in 1884 settled in Weaver- ville, in Trinity county. There he acquired a lucrative practice. The marriage of Hon. T. E. Jones, Superior Judge, to his wife's sister in 1888, disqualified the court from try- ing cases in which Mr. Turner appeared, by reason of the Campbell Act. It operated such a hardship on Mr. Turner that he gave up his practice and located in 1889 at Eureka, Humboldt county. He found it slow work to get a foothold there, owing to the fact that business was crystallized, but he has frequently been called into adjoining counties to try im- portant cases. Mr. Turner takes but little part in politics. He is a tireless worker, patient in investigat- ing facts, fearless and aggressive, and hav- ing once undertaken a case, cannot be swerved from the path of duty as he sees it. He is a master of irony and sarcasm, detests treachery, and denounces the dishonest practices too often indulged in by some of the profession to get business. He has not been successful in acquiring this world's goods, but points with pride to the records of the Supreme Court of this State in his suit for libel against The Examiner (115 Cal. Rep.), where it was alleged under oath and admitted on the trial, "that during all his years of practice he de- meaned himself in the practice of his pro- fession with honesty, integrity and strict fidel- ity to the interests of his clients." He was married in 1879, and his family con- sists of his. wife, two sons and three (laugh- ters. He is an active member of the Masonic fraternity, and regards Freemasonry as the strong bulwark of liberty, the "light of the world," and one of the surest safeguards against ignorance and superstition. For many years, through the legal publications, he has advocated the abolishment n\ trial liy jury, and the trial of all cases Ijcfore three judges; and has urged that our system of ple;i(ling. mode of trial and of appeals, be reformed and siinplified. He believes that our judges should be appointed solely on account of their ability and integrity, holding ofifice during good be- havior and while physically able to discharge their duties, and that their salaries should be doubled, thus securing the best order of mind for the bench; that our circumambulating Appellate Court should be abolished, .ind the court permanently cstal>lished at San l-Vaii- cisco; that the custom of writing long decis- ions should be changed, and the decisions he rendered briefly, orally, from the bench at the conclusion of the argument, and that re- hearings siiould be had only in capital cases, with a view to end tiie law's delays and lessen the expense of litigation. F. P. TUTTLE. Fred P. Tuttle was born at Auburn, Placer county, California, September 28, 1857. He attended Yale College, and the University of California, and was graduated at Hastings College of the Law in 1881. He practiced for some two years at Oakland, and in 188.^ opened an office with his father. Chas. A. Tuttle, at Auburn. He was elected district attorney of Placer county in 1886, and again in 18S8. He has served one term as city attorney of Au- burn, and has been connected with most erf the important litigatit)n in Placer county since he entered on the practice. In the course of a large and successful business he has made somewhat a specialty of mining law, and is now a participant at the bar in all contro- versies of that character. Mr. Tuttle early interested himself in politics, and has on the stump and in conventions done much for the success of the Republican party. WALDEMAR J. TUSKA. Mr. Tuska was l)orn in New York city in 1850. and was graduated from the Columbia Law School in M.iy, \X(n). with the degree of LL. H.. which entitled him to admission to the bar of the State Su])renK' Court. He had not yet reached his majority, however, and the intervening period of over two years was ])assed in iuiropean travel, and in courses of study at the great universities of Paris. Ber- lin, and \'ieima. .At the age of Ji he re- turned home, and was at once admittej] to practice in all the courts of New N'ork State. lie was at the metropolitan bar lor alxiut >ix years, when, becoming interested in min- ing business, he, in 187S, removed to \'ir- ginia City. Nevada. He very soon secured a good practice there. In i87cj-'8o Mr. Tuska was assi-^tant dis- trict attorney of Storey county. Nevada, nn- 946 History of the Bench and Bar of California. der John H. Harris, by the latter's appoint- ment, although the two gentlemen were of different politics. In 1880, he was president of the only Hancock (Democratic) club in Virginia City. He stumi)ed the State in the Presidential campaign of that year, in com- pany with Colonel George Flournoy, of San Francisco. Nevada went Democratic that year, and Mr. Tuska was elected to the assembly. He was made chairman of the judiciary and corporations connnittee. In 1882. he .settled in San Francisco, and has ever since been very active at that bar. In 1899 he was retained by the widow of Colonel Reinhold Richter, of the First Cali- fornia Volunteer Regiment (who was killed in action at Manila, August 4, i8g8) in a suit to recover fnmi the Knights of Pythias the siuu of $3,000 on a beneficiary certificate. The Supreme Lodge had refused to pay the benefit because Colonel Richter died in battle. After an arduous trial, the widow recovered judg- ment. Mr. Tuska was one of the counsel for Tax Collector Jos. H. Scott, of San Fran- cisco, in the contest inaugurated by ex-Tax Collector Ed F. Sheehan, who claimed that, under the charter of 1898, Scott was not eligi- ble. CHARLES UDELL. Charles Udell, a successful and prominent lawyer of Los Angeles, whose office is in the Homer Laughlin building, was born in Wau- .shara county. Wisconsin, March i, 1858, a son of Jared and Paulina (Stevens) Udell, who died during his childhood. His father be- longed to an old historic family, which in- cluded Nicholas Udall (as the name was then spelled), the founder of the English drama, who was born in 1505 and died in 1556. Our subject's ancestors were among those who came to this country in ihe Mayflower. To a limited extent Mr. Udell attended the public .schools during his boyhood, but the greater part of his education has been acquired by self-culture. .\t the age of thirteen years, after the death of his parents, he started out to make his own way in the world, working in the summer at whatever he could find to do and attending school through the winter months as he found opportunity. Before lo- cating permanently in California he had trav- eled all over the United States and made a trip around the world. In 1877 he assisted in the construction of a railroad in Mexico; later engaged in mining in the Black Hills; and in its early davs visited Leadville. Col., where he also engaged in mining. He was on the frontier of Texas for a time and subsequently followed the sea for a number of years. In 1884 Mr. Udell located in San Fran- cisco. During all his years of travel he had read extensively, and he determined to make the practice of law his profession. Accord- inelv. in 1887 he settled at Los Angeles and entered the law office of Graves, O'Melveny & Shankland, with whom he studied for three years, being admitted to the bar in 1890. Opening an offfce, he engaged in practice with marked success. In 1890 Mr. Udell married Miss Elizabeth C. Bewley, of Jenny Lind, California, and to them have been born three children, namely, Mildred, Kenneth and Dorothy. Mr. Udell is a member of the Masonic fraternity. An- cient Order of LTnited Workmen, Woodmen of the W^orld, Maccabees, and the Fraternal Brotherhood, and politically is a staunch sup- porter of the Republican party. In the fall of 1898 he was elected a member of the board of education of the city of Los Angeles, which position he held until business called him to Nome, Alaska, in April, igoo. Previous to his departure for Alaska, he formed a par- nership with L. L. Shelton, an attorney-at-law, formerly of Galesburg, 111., under the firm name of LMell & Shelton. Leaving his Los .•\ngeles practice in the hands of his partner, he left Los .\ngeles on the Thrasher (the first vessel leaving for Alaska), April 21st. 1900. .■\fter spending about three months' time in Nome, he removed to Teller, Alaska, where he is now established in the practice of his pro- fession. R. H. F. VARIEL. ' The president of the Bar Association of the city of Los Angeles, as might be said, no doubt, of the president of any bar association in a large city, represents the intelligence and honor of the profession, and has the unqual- ified respect not only of the bar but of the general community. Robert Henry Fauntleroy Variel was born in Indiana on November 22. 1849. He comes of Revolutionary stock on both sides, his re- mote ancestors uniting Scotch-Irish and Scotch-English blood with a dash of Nor- man. The name Variel is French, and is not pronounced Vay-re-el, but as if spelled with two r'.s — Vair-re-el, with accent on first syllable. Mr. Variel's father. Joshua H., was a native of Maine. He went west before he was of age and settled in Indiana. There he ^>-as niprried to Miss Marv A. Casey, in 1S48. R. H. F. Variel is the oldest of five children — two son'^ and three daughters. TTie father ^. H. F. Variel History of the Bench and Bar of California. 949 brought his family across the plains in 1852, arrivnig in this State in September, and pass- ing the winter of 1852-3 — said to have been the severest ever known here — in a log cabin on a branch of the north fork of Yuba river, far removed from any other habitation. When spring came, they located at the mining camp of Caniptonville, forty-eight miles northeast of Alarj-sville. The children received some instruction in a school that was, after a few j'ears, opened in an old log house. For six months, during 1865-66, the oldest son, was placed in a better school. He returned home with a thirst for reading, and it happened that there were many good books in the settlement, including some standard works. These stimulated and fed the young man's mind and his appreciation of them influenced the parents to determine upon a professional career for him. It happened, too, at that juncture, that there was in camp first, A. G. Drake, and then E. A. Davis, teachers of the local school. They were observant men and saw young Variel's natural qualities. A. G. Drake was especially a capable instructor and became principal of the Marysville High School, which position he held until his death. E. A. Davis was his teacher only for a short time. He is now the Superior Judge of Yuba and Sutter counties. These men gave him attentive instruction. At the age of eighteen the young student after examination, was given a second-grade school certificate entitling him to teach in Yuba county. He secured a school at once, and continued to teach, in various mining districts, for five years. The last two years of this time he taught in Plumas county, at Crescent Mills, under a first-grade State certificate granted him in 1S70. Mr. Variel presents to us next the tmique instance of a man entering on the practice of law and the study of law at the same time. In 1873, he was elected district attorney of Plumas county, on the Republican ticket. He had never studied law. And he was the only man on the ticket who was elected. He took the ofifice with the opening of the year 1874. How did he come out? Well, he was elected again at the end of his term ; and again, and again, imtil five terms had passed, and he posi- tively refused to stand again for the place. Does this read like fiction? Well, there is the record, all oj)en for examination, in the courthouse at Quincy. He diligently studied law from the time he took the ofifice; indeed, from the time Ik- was nominated for it, and left the place after his long tenure, a well-informed and experienced lawyer. That is the man who is nnw i)ri-si(K'nt nf tin- Bar Association in the metr(lI)()li'^ nf tin- 'M, posite end of the State. Before making his long reniuve from nortii to .south, Mr. Variel represented I'hunas and Sierra counties in the assemlily. It was at the session of 1887. wlun Hon. Stephen M. White was president pro tern of the senate, and Hon. W. 11. Jordan was sneaker of the assembly. Did we say that he left the office of district attorney a well-infornud and exjier- ienced lawyer? This was the sentiment at the capital, when he took his seat in the assembly. He was given the chairmanship that of right belongs only to the best lawyer in the body — that of the judiciary committee. When the legislature adjourned, Mr. Va- riel removed to Oakland, and opened a law office in San Francisco. His name is in only- one San Francisco city directorv, that for the year 1888. In January of that year, before that directory was issued, he had settled per- manently in Los Angeles, as being not only a fine business center, but a place far more agree- able to his health. He soon formed a partner- .ship with Stephen M.White, and became prom- inent at the bar of his new home city. He has an interesting family. His wife was Miss Caroline Vogel, to whom he was united in 1876. Mr. Variel has been practicing alone now for many years, except that his only brother, who is also a lawyer of fine ability, is associated with him informally. A suite of large and pleasant rooms close to the court- house, and a great law library, occasion re- mark by all visitors. In the History of the Los Angeles Chamber of Commerce (1900), of which body Mr. Va- riel has been a member since 1896. is a no- tice of him, from which we have not taken any of our facts set forth above, but the closing passages may fitly conclude our own sketch, as follows : "Mr. Variel gives much time to public in- terests. In framing a city charter, as presi- dent of the Bar Association, as trustee of the State Normal School, as trustee of the law library, as a member of the Chamber of Com- merce, and in many other ways, he shows his public spirit. He is of a marked social turn. He is a member of the Jonathan Club, of the Repul)lican League, of the highest orders of Masonry, including the Mystic Shrine, of which he is high i)riesl and prophet. He is an enthusiastic sportsman, a member of the Creel Club, of the Cerritos Gun Club, the Los .An- geles Gun Club, and the Los .Angeles Sharp- shooters. He is an excellent reconteur. an interesting public speaker, and not infrequently he 'drops into poetry.' to the delight of liis au- ditors." .\. I". \A.\ i)iv.i:u. riiis well-known citi/en of Calif«.)rnia was born in Delaware county. Ohio. He conies of good Knickerbocker stock, the Van Duzer family iieing one of the original colony from Holland wJM founded the city of New York. In the early part of the present century, .\bra- h.im \'an Duzer, grandfather of .\. P. \'an I )ii/er, removed to Ohio, and from there the l\iv. J.icob \'an Duzer. his father, removed to Iowa in 1839. He was educated in the com- mon .scIumjIs of tiiat slate, and was one of the first students to enter Cornell College, at Mt. \'ernon. Iowa, then known .is the Iowa Con- ference Academy. .At the age of twenty-one Ik- came to California. locating in Siskiyou countv. where he was elected district attorney in 1863. At the close k- rank during an ordinary lifetime, and knowing that every year he remained in the army would make it more difficult to live 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 ac- cepted in September, 1869. Allogether, lie 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 Sac- ramento 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 examina- tions in open court. Again yielding to the call of the Union he reported the senate proceedings at Sacramento during the session of 1871-72. This was the session at which the Codes were adopted and the change afforded a good time for beginning law practice in this State. In May, 1872, the judges of the California 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 rei)orts of all the cases decided. These were subsequently embodied in the volumes of Reports from Nos. 41 to 49. In 1873 Mr. Waymire delivered the oration upon Memorial Day, at Sacramento, wiiicli at- tracted much attention. Mr. Wavmire removed to San Francisco in July, 1874, and has been engaged in the prac- tice of the law since May, 1875. His prac- tice has been of a general character, embracing a wide range of important law points. In the l)re])aration of his cases he is painstaking and industrious. Whenever the importance of the (|uestions involved has justified tlie labor, he has made it a practice to write careful i)riefs and have them printed. He has been engaged in many important cases. Judge Waymire went ui)on the bencli of the Superior Court, by the ai)i)ointinent of (iov- ernor Perkins, October 17, 1881, to fill a va- cancy. His appointment was greeted witli the general apjiroval of the bar. His industry on the l)ench was generallv 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, espe- cially to lawyers of large practice. In his fourteen months on the bench he rendered eleven hundred opinions, a large prrii"n bemg on demurnr, but all on (pii-snunx which eouiistl li;id made the subject of argumenl. Of tliirty ap|)cals fn.m his judgments only three were sustained. At the end <>f Judge W'ayniire's .short term as Superior Judge he was nominated bv 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 (Jernian vote. In consecjuencc of an agitation of the Sunday law question, that vote seemed to be cast almost solidly for the Democratic nominees. State and local, po- litical and judicial, in 1882. It was in that campaign that Charles Kohler. the large pro- ducer of native wines and president of the League of Freedom, went over to the Democ- racy from the Republicans with a large follow- ing. Mr. Kohler. however, desired to see Judge Waymire re-elected. The lawyers sup- ported the Judge with general concurrence. Hall McAllister ;ind other bar leaders publi>h- ing a card in his behalf. Although defeated, he received the highest vote of all the Republican candidates in that contest, and ran over 5,000 votes ahead of his i)arty candidate for {gov- ernor. 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 busi- ness before going on the bench was small. In F\>bruary. 1883, Judge Waymire was elected by the encam|)nient of the Grand .\riiiy of the Republic a member of the \'eteran>" Home Association of California for a term of five years. In March of the same year he was chosen a director of the association named, and served as chairman of the executive com- mittee until March, 1885. when he was elected presideiH of the association. He was eight times re-elected as i)resident. It was at his sug- gestion that the Federal government was me- morialized to establish a branch of the Na- tional Soldiers' Home on the Pacific Coast. He was ai)pointed to urge the enactment of the necessary law to that end. .After several years of correspoiulence with members of the board of managers, and with senators and rep- risenlatives in congress, he haeen organized as required by law. Such a proceeding had been taken to test the validity of Modesto dis- trict, which adjoins the Turlock. The Superior Court, after a trial, gave judgment in favor of the district ; an appeal was taken to the Su- preme Court of the State, and after an ex- liauslive argument, that court confirmed the judgment. The opposition were not satisfied and took an appeal to the Supreme Court of the United States. The case was ready for decision early in 1894, but Senator Stewart obtained leave to file an elaborate brief and caused the submission to be set aside. Before it was decided. Judge Ross of the United States Circuit Court decided in the case of the Fallbrook Irrigation district that the law for tile organization of irrigation districts was unconstitutional, and that consequently the districts formed under it were void. This case, of course, if allowed to stand, would have de- stroyed the Turlock Irrigation district, along with all the others. Judge Waymire suc- ceded in getting the leading friends of the ir- rigation system, including the principal bond- holders, together, and raised funds, counsel fees and other expenditures. The Fallbrook case was appealed, and the two cases were set for argument together. Ex-Chief Justice A. L. Rhodes of California and ex-United States Circuit Judge John M. UUlon of New York were employed by the organization of bond- holders. Judge Waymire himself retained ex- President Harrison. He also prepared a com- prehensive opinion reviewing the opinion of Judge Ross. It was of great assistance to counsel for the district in the argument of the cause. He spent some time in consultation with Judge Dillon and General Harrison. The cases came up for hearing in February, 1890, and attracted general attention all over the country. In November of the same year the court decided the cases, fully sustaining the constitutionality of the law, reversing Judge Ross in the Fallbrook case, and confirming the Supreme Court in the Modesto case. This was supposed to settle the litigation, but a few weeks later the Supreme Court of the State rendered a decision in another case (Hughson vs. Graw) that made the situation worse than ever. A suit had been brought in Stanislaus county to enjoin the sale of land for an as- sessment levied to pay interest on the bonds of Turlock Irrigation district. The complaint alleged all kinds of irregularities, including fraud in the issue of the bonds. Instead of going to trial and disproving the allegations, as he might easily have done, the attorney for the district filed a demurrer and rested hi.s case on the point that an injunction would not lie to restrain the collection of an assessment, as it was of the nature of a tax. The court sustained the demurrer, and the plaintiff ap- pealed, going to the Supreme Court with a record charging fraud and gross irregularities, which, of course, were admitted by the de- murrer. With this record before it. the court reversed the judgment, holding that a sale of land to pay an assessment levied for the inter- est on bonds issued under such circumstances could be enjoined. This put the bonds under a cloud which could not soon be removed, and made it difficult to prosecute any work for History of the Bench and Bar of California. 1)57 an irrigation district. In fact, work on all of them came to a standstill, except in Turlock. Here the persistence and energy of the con- tractor prevailed over all difficulties. A later decision of the Supreme Court, rendered in the year 1897, in the case of the Central Irri- gation district, held that district to have been illegally formed for want of sufficient notice to the board of supervisors of the hearing of the petition for the formation of the district. Ap- plications were made to the attorney general for leave to bring actions to dissolve the Mo- desto and Turlock Irrigation districts. As to the first district, the application was granted, but as to the second, it was refused because of the arguments presented by Judge W'aymire. Finally, the tide turned. Judge W'elborn of the United States Circuit Court held that the two years' statute of limitations protected the districts from attack. Soon afterwards the State Supreme Court in the Linda Vista case decided that where a decree had been made by a Superior Court confirming the organiza- tion of a district it was final. Then came the decisions by Judge Morrow — the United States Circuit Court holding that the district's are protected by the two years' statute, and that the bonds issued by Modesto district are legal and must be paid. This decision indicates the probable end of a litigation that has cost the State many millions of dollars, retarded its development and brought into disrepute a class of securities which should be in favor every- where. Early in i8g6 Judge Waymire was requested by the friends of Hon. William McKinlcy to undertake the work of obtaining the delegates for the Pacific Coast states to the Republican National convention for McKinley for Presi- dent. The task was not an easy one, as Speaker Reed was a candidate, and having lived in the State, was in favor, especially with such strong men as those in control of the railroads. Senator Alli.son also was a candi- date, and had a powerful following, with char- acteristic zeal and industry. II a]>ii')iiitinriil lo tin- Cab inet. Judge Waymire has been .ind is inleresled in mining, as well as in fanning, lie owns a good gold mine in the Mother Lode, near Jamestown, and the controlling interest in a gold and copper mine in Pl.icer county, which is deVeloi)ing into a gre.il property. But his chief enjoyment is derived from his library, his family and his friends, whom he delights to entertain. In addition to his professional success. Judge Waymire has made some fortunate ventures in country lands and San Francisco and Alameda real estate. His home is in the town of Ala- meda, where he has a fine dwelling in the midst of four acres of land attractively im- proved. Upon this he has ex|)ended more than $.p.ooo. He has a wife, two sons and two daughters, having married at Lafayette, Oregon, on June 22. 1865, Miss X'irginia .\nn Chrisman, a Missouri lady, who. like her hus- band, is of German ancestry. His son, Charles F. Waymire, resides with his wife and son at Sacramento. His daughter. Miss Edna, is a graduate of the State University; Miss Maude, being of delicate health, was trained under private tutors. Both daughters are of literary taste. Rudolph, the youngest child, is ambitious to be an officer of the navy. J. H. G. WEAVER. J. H. G. Weaver was born on a farm near Quincy, Michigan, where he grew to manhood. He attended the common district schools in the winter and worked on the farm in the summer until he was eighteen years of age. when he enlisted as a volunteer in the War of the Rebellion. He served in Company I. Eleventh regiment. Michigan \'olunteer in- fantry, from the time he enlisted until the close of the war. On returning home he again worked on the farm in summer and attended the high schools of Quincy and Coldwat'^r in the winter until the fall of 18(18. when he entered Hills- dale College, located at Hillsdale. Mich., from which he was graduated in June. 187-'. with the degree of B. S. In the fall of that year he en- tered the law department of the Michigan University, from which he was graduated in 1874 with the degree of LL. B. His education was obtained through his own individual ef- fort.s — by working on the farm and teaching school. .■\fter graduation from the law ilepartmeiit of the Michigan I'niversity he went to Kansas, where he taught the L'nion high school of LaCygne for two years. In the fall of 1879 Mr. Weaver married Flora Williams, of Putnam county. Indiana; they were married at her home. Rose Lawn. in th.it county. hi the spring of 1876 they moved to Cali- fornia, taking up their residence in llumbohit county, where they have resided e\er since. The first year of their residence here. Mr. Weaver taught school, holding tlu position of principal of the Areata schoids. Since tlien he has followed his iirofession. and he now ranks as one of tiie leading members of the Humboldt bar. Ill t88j he was elected a member of the .Stale legislature. He was re-elected in 1884 • ind declined the nomination for State scnalor in i88(). He has also held the olVue of city attorney for the city of I'.ureka. He is a member of Col. Whipple Post N%i. JO. (1. .v. R.. having been its connnan«ler twice. His amiable wife has been jiresident of the corps auxiliary to tliat post. Mr. Weaver has two children, Charlotte R. 958 History of the Bench and Bar of California. and Bonita, aged respectively twenty-two and nineteen years. Both are graduates of the Eureka high school, and Bonita is now in the social science course of the University of Cali- fornia. In politics Mr. Weaver has always heen a Republican. He is a high tariff, gold standard, general expansionist Republican — fully in ac- cord with the policy of the present administra- tion. He is a man of positive convictions, and possesses the courage of his convictions. There has been but one national or State cam- paign since he has been a resident of Cali- fornia in which he did not take the stump in behalf of his party. He is a forcible and en- tertaining speaker. FR.\XK R. WEHE. Frank R. Wehe was born at Downieville, Sierra county, California, on the i6th day of January, 1855. in a miner's log cabin of one room and a shed. Babies were scarce then, and on the day of his birth it was requested that he be held up to the only window of the cabin, so that about one hundred miners might file past and see him. He left the public school at the age of twelve to work in a mine. He went to San Francisco in 1872 and worked at the Oakland Ferry, tending a fruit store. Afterwards he was office boy for Provines & Johnson, law- yers of San Francisco. He returned to Down- ieville in 1878, and mined a while, and studied law. He was admitted to practice in the Su- perior Court in 1882. The same year he en- tered the office of Judge P. Vanclief, at Downieville, and remained with him until the Judge was appointed commissioner of the Su- preme Court. The fatherly kindness of the old Judge for the yoimg briefless lawyer did much to shane the latter's future, and Mr. Wehe gives that association credit for his later success. He was admitted to the bar of the Sunreme Court of the State in i8go. In 1882, 1884. 1886 and 1888 Mr. Wehe ran on the Democratic ticket, in the Republican countv of Sierra, for district attorney, being defeated each time. In i8c,o he ran on the Democratic ticket fur the assembly in the dis- trict then composed of the counties of Plumas and Sierra. The Republican majority was over four hundred. He was again defeated, but this time by only forty-two votes, carrying Sierra county by one hundred and twenty-two maiority. In 1892 he was elected district at- torney of Sierra county by 562 majority, the largest majority ever given a candidate for that office in that county. He was re-elected in 1894, and again in 1898, being still an in- cumlx'ut of the office. In 1882 he married Miss Helen M. Hill, also a native of Downieville, and they have four children. Mrs. Wehe is of a social disposi- tion, and their cosy home is the scene of many pleasant gatherings. Mr. Wehe has been leading counsel on one side or the other in nearly every case of any importance tried in Sierra county for the last ten years, and now enjoys a large practice. In 1897 he was elected president of the Sierra County Miners' Association, and has been re- elected each year since. He has always been an enthusiastic Demo- crat, but also enjoys to a large degree the es- teem of the leading Republicans of his county. M. A. WH EATON. Milton A. Wheaton of San Francisco, who has been so distinguished in patent cases for thirty years, 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 mechanical construction. His genius in this line became the inheritance of the son. as has been repeat- edl}^ evidenced by the latter's masterful grasp of patent cases. The father died when the son was less than eight years of age. . The son went to school in his native coimty. and entered Hamilton College, which is there located, in the year 185 1. He had maintained himself by working on dairy farms since he was twelve years old, becoming familiar with the care of cattle, milking, the manufacture of butter and several kinds of cheese. Later he worked in a factory, making cheese boxes, where he became familiar with the u.se of machinery, and mechanical hand tools. 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 with- drew from Hamilton College, after less than two years of study, to accompany an uncle to California. He arrived in San Franciscd, by way of Pan- ama, on May 5, 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 number of dead enormous sugar- pine trees. These 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. In the fall of- 1855 he commenced the study of law at Sac- Milton A. mealon History of the Bench and Bar of California. 961 ramento, in the office of Carter & Hartlej-. and on the 15th clay of September, 1856, he was, after an 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. He had no bad habits. He loved work and study. His cast of mind was practical and serious. In Solano and its neigh- boring counties in California, he ac(iuired. in his younger days, a local reputation of being a master of land law, as he afterwards ac- quired a reputation as a master of patent law, that reached across the continent. Mr. Wheaton has been called upon to try many patent cases in the cities of Boston, New York, Chicago and St. Louis, and during the twenty- eight years last past he has argued numerous cases in the United States Supreme Court at Washington. California's highest Court of Appeals is its Supreme Court. It is not so in New York. Mr. Wheaton's first case in the Supreme Court of this State was that of the People vs. Jersey, reported in the i8th Cal. Reports, at page 337- Jersey had hired a horse and saddle at a livery stable in Suisun City, and did not re- turn it. He was indicted for grand larceny, and was convicted in the lower court. Mr. Wheaton appealed the case to the Supreme Court and argued that as the original taking of tlie horse and saddle was lawful, the crime of larceny was not committed. The Supreme Court decided in accordance with Mr. Wheat- on's argument, and reversed the judgment. Mr. Wheaton subsequently succeeded in obtaining the full discharge of his client. In Hidden vs. Jordan. 21 Cal. 92, Mr. Wheaton was the attorney for Hidden. The action was brought to compel the defendant to execute a written conveyance of land in Solano county, California, in accordance with a verbal agreement made between the parties. The land was owned by third parties, and Jordan liad agreed with Hidden to i)urchase the legal title, pay a part of the purchase mone}^ there- for. Hidden furnishing the remainder, and to convey the land to Hidden upon the later re- paying the advances made by Jordan with in- terest thereon. Jordan purchased the lann of one hundred and eighty acres of the land and the Lougs were in possession of the remaining three hundred ;inne of its most eminent jurists, to defejid the suit. Prior to i8()o the case had been twice tried, twice a|)pe:iled and twice reversed on ap|)eal. When it came on for its next trial Mr. Wheaton was joined with Jiid.ite Currey in defriidiiig the stiit. The trial resulted in a juilymenl for the plaintilT I'.llis. .\fteF the trial and before the case was ;ip- pealed. Currey was elected one of the Justices of the Supreme Court, and from that time forward cotild not. and cjid imt. take any further part in defeixling the suit, which was left entirely in the hands of Mr. Wheaton. riie main (piestion of fact to he determined in the case was wliethcr or not Mizner ami 962 History of the Bench and Bar of California. 1^^ McDaniel had notice of Vaca's deed to the Pattens and Lyon when they took their sub- seqncnt conveyance from \'aca. If thej- had such notice their own deed would be void, but if they did not have such notice, they could hold the land as innocent purchasers for a valuable consideration, as Vaca's deed to Pattens and Lyon had not been recorded in the county recorder's office when Vaca made his second deed to Mizner and McDaniel. The lower court found as a fact, and decided, that Mizner and McDaniel did not have notice of the said deed to Pattens and Lyon, and entered judgment for the plaintiff Ellis for the pos- session of the land, together with a judgment for five thousand dollars damages for rents and profits for the adverse use of the land by the defendants. In this state of affairs Mr. Wheaton made up a statement and made a motion for a new trial, which motion the court denied. Mr. Wheaton then appealed to the Supreme Court from the judgment, and also from the order made denj'ing his motion for a new trial. On the issue of fact as to whether or not Mizner and McDaniel had notice of Vaca's prior conveyance the evidence was conflicting, and the Supreme Court refused to reverse the judgment on that ground. Mr. Wheaton had. however, made the point that the lower court had assessed damages for the use and occupa- tion by the defendants for all of the land sued for, while the plaintiff had himself had possession of one hundred and eighty acres of the land, and that the defendants ought not to be compelled to pay the plaintiff' for the use of the land which he had himself had the entire use of, and which the defendants had not had any use of. The Supreme Court took Mr. Wheaton's view of this point, and re- versed the judgment accordingly, ordering the case back to the lower court for a new trial. It was at this point that there began a close and exciting struggle that made a draft upon the best intelligence and keenest wits of the attorneys upon both sides of the case. While it was an important object for the de- fendants to get rid of the judgment for dam- ages, the main purpose of the contest was to hold the land. If the order of the Supreme Court granting a new trial could ])e maintained it carried the whole case back to the lower court and the defendants could make another fight for the ownership of the land. If, however, the plaintiff could have his judgment for the ownership of the land affirmed he could well afford to lose his judgment for damages. The' plaintiff"s counsel accordingly came into the Supreme Court and asked the court to modify the judgment appealed from by strik- ing out of it the entire damages, and then affirm the judgment giving the land to the plaintiff. The Supreme Court was willing to do this, if the record was in a shape to make it feasible to do so. Mr. Wheaton opposed this motion upon the ground that ejectment was an action that tried the right of posses- sion only: that in ejectment the plaintiff must not only show title in himself, but he must also show that the defendant was in pos- session when the suit was commenced, or he could not recover ; that the record showed that Ellis was in possession of about one hun- dred and eighty acres of the land that the Longs claimed to be the owners of, and that their title could not be litigated as to the part of the land so in the possession of the plaintiff. The Supreme Court decided that Mr. Wheaton's position was in accordance with the law of ejectment, and therefore refused to grant the plaintiff's motion. The plaintiff's counsel then came in and re- peated their offer to have all of the damages] remitted and turther offered that the part of the land possessed by the plaintiff should be released from the judgment, and have the judgment affirmed for the plaintiff as to the land which the Longs had the possession of. This the Supreme Court was also willing to do, but Mr. Wheaton then presented the further point that there was not a sufficient description in the record to make a correct and exact identification of the dividing line that separated the two tracts of land which had been held by the respective parties. The record was critically examined and the Su- preme Court decided that Mr. Wheaton was right in this contention also. The plaintiff's counsel then came in and asked to have an exact survey made by any surveyor which the court might appoint, so that the exact description of the two tracts of land should be definitely determined, the separation of the two tracts made and the plaintiff have his judgment affirmed for the tract held by the Longs. To this motion Mr. Wheaton re- sponded by challenging the jurisdiction of the Supreme Court to make the order. He ar- gued that the Supreme Court was an aonellate court only, and that it had no right to take original testimony and decide a fact that had not been decided in the lower court ; that the exact location of the dividing line between the two tracts of land had not been decided by the lower court, and there was therefore no decision of the lower court upon the location of that dividing line for the Supreme Court to act upon, either to affirm, reverse or modify. L'pon this proposition also the Supreme Court decided that Mr. Wheaton was right, and the case was sent back to the lower court for a new trial. The case was subsequently twice retried before juries in the lower court, and on each trial the jury disagreed. The litigation was afterwards compromised by the plaintiff keep- ing the tract of land which he had in pos- session, and the Longs keeping the larger tract of which they were in possession. In the meantitne the land had risen in value so that the one hundred and eiehty acres which fell to Mr. Ellis upon the compromise was worlh many times as much as the entire five hundred acres were worth when tlie litigation commenced. The land lies in the heart of the celebrated Vaca Vallev. After Mr. Wheaton commenced his career as a patent lawyer he largely withdrew from his practice in the State courts, although since that time there are shown at intervals in the reports of the State Supreme Court important History of the Bench and Bar of California. 963 causes in which he made the arguments upon one side or the other of each case. 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. His connection with the great suit of N. W. Spaulding & Co. vs. Tucker & Putnam, agents of the American Saw Company, was an ex- ample of that "tide in the affairs of men, which, taken at the ffood, leads on to for- tune." Nathan W. Spaulding, Assistant United States Treasurer at San Francisco from May 5, 1881, to August 20, 1885, came to Califor- nia in the year 1851 from Maine, where he was born, September 24, 1829. At a compara- tively early date in his long career, remarka- ble for achievements in business and inven- tion, he made the discovery of which the liti- gation 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 and formed into better shape for fast and easy cutting 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 available, on account of the ten- dency 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 careful investigation that the strain and constant vibration incident upon the use of the saw caused crystalization of the metal at this pcnnt, and. with a pcnverful 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 otlier 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 junction of the base and sides of the socket, or as the letters-patent afterward stated, he useii 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 Spaul- mgs patent cases many of our largest and most practical nnllmen testified to the great improvement made by Mr. Spaulding, which in some instances increased the output of their mills several hundred per cent. Mr. Spaulding's application to the govern- ment for a pateiU was at first rejected. The nature of the invention was not grasped. But when proof was introduced to them showing the great effect produced by the use of circu- lar lines in a saw socket, they looked deeper. A discovery of incalculable value was appar- ent. The letters-patent applied for were is- sued. A flow of gold came in to the inveiU. li.id made use- of the s.iiiie thing on which Mr. Spauld- ing had received letters-patent, in the year i8.?7. This and all like evidence was really destroyed by Mr. Wheaton's cross-examination. When the evidence was all in an. as a permanent feature of all Memorial Day exercises coiulncted by the Grand .\rmy of the Republic. He has l)ecn a iiu'inber of George \\. Thomas Post since its organization, and is past conuuan;nmcd active practice in Los .'\ngeles in 1SH5. and has fol- lowed it there ever since. He formed a part- nershij) with Hon. R. N. HuIIa in 1S87. The firm of Wilson & Bulla was dissolved in i()00, Mr. HuIIa then retiring from active prac- lice. .Mr. Wilson was married in iSSo, His fam- ily consists of his wife and funr children, two boys and two girls. His practice has been lartrely in the lines ia Law School, and was admitted to the bar in Brook- lyn, N. Y., in September, 1884. He located in San Francisco in January, 1885. He was in partnership with Bartholomew Noyes (Noyes & Chetwood). for about two years, and has practiced alone from the end of that associa- tion to the present time. HARRY T. CRESWELL. Mr. Creswell was born in Eutaw, Alabama, at the residence of the elder Harry I. Thorn- ton, on December 10, 1850. Harry I. Thorn- ton Jr., referred to in this History, was his uncle, and left him his estate. His father was Judge David Creswell, a Circuit Judge in Illinois. Mr. Creswell, after being ad- mitted to the bar in his native state, went to Nevada, where he became prominent in the profession and held the office of district at- torney for three terms. He was also a state senator there. He removed to San Francisco in 1888. For three terms, 1893-98, he was city and county attorney, and city hall commissioner of San Francisco, but resigned in the middle of his last term, to go in partnership with Hon. John Garber and Joseph B. Garber, in law practice. He is a lawver of much ability, and has always enjoyed great prosperity. The leading law firm of Garber, Creswell & Garber dates from 1897. LOUIS F. DUNAND. Mr. Dunand was born in New Orleans, La., September 15th. 1849. His father, Maurice Dunand, a mining engineer, attracted by the discovery of gold in California, arrived with his family in the fall of '50. The father was able to give his son the advantage of a first- class education in the public schools of San Francisco, and at Santa Clara College. On his admission to the bar in 1879, Mr. Dunand commenced the practice of his profession in S^an Francisco. For twenty years he has de- voted himself more to office work than to William H. Chapman Hisforx of the Bench and Bar of California. 979 court practice, and has been particularly suc- cessful in real estate cases, disputed land titles, and commercial law. The legal pro- fession has been to him something more than a money-getting business, and it is said of him that he has never encouraged litigation — pre- ferring to obtain for his clients their just rights by honorable and fair compromise. In all his dealings he is unfalteringly conscientious. Mr. Dunand's clientage includes such firms and corporations as the Dumbarton Land and Improvement Company, the Imperial Paint and Copper Company, the Central American Development Company, and the Commercial Building and Loan Association, whose import- ant litigations he has conducted with signal success. He has traveled extensively in the interests of his clients, in the East, Mexico, and Central America, where contracts and titles of importance were successsfully passed upon by him. Some six years ago Mr. Diinand was enabled to carry out his long-cherished hope of possessing a home in the country, and he selected San Rafael, that beautiful little city across the bay among the Marin Hills. There he spends his evenings sur- rounded by his family in the study of litera- ture as well as the law. In politics Mr. Dun- and is a Democrat, and at the election held in San Rafael in the spring of 1898, he was elected by a large majority a member of the board of education for the term of four years. In fraternal organizations he holds high po- sitions, being a past master of Doric Lodge F. and A. M., and Past Noble Grand Arch of the Order of Druids. He is an accom- plished linguist. WILLIAM H. CHAPMAN. Mr. Chapman's name brings up the memory of the loss of the steamship Central America, off Cape Hatteras in 1857. His father, Daniel H. Chapman, went dow-n on that vessel, with many other California pioneers, who were on their way to visit their old Eastern homes, among them being the great lawj^er, Lock- wood (q. v.). Mr. Chapman comes from an old American family, and was born in Sacramento county, California, October ig, 1856. His parents were pioneers of 1849. He received his early edu- cation in the public schools, afterwards at- tending the University of California, from which he was graduated in the class of 1879, with the degree of M. A. He pursued the study of law by himself, and was admitted to practice by the Stale Supreme Court on Jan- uary II, 1881, after examination. On October 19, 1893. he was admitted to the bar of the Supreme Court of the L'nited States. Air. Chai)man's practice has been at the bars of San Francisco and Oakland, and in the civil line exclusively. It has ])een active, and principally in cases involving corporation, real estate, mining and commercial law. For some years. 1)eginning in 188.^, Mr. Chapman was in partnership with Charles W. Slack, who was afterwards (.\ugust, 1891 — January, 1899) a Superior Judge of San Francisct). This was a strong firm and became very prominent, ac- quiring large business. Mr. Chapman is generally accounted by leading men of his profession, as a lawyer of great ability and learning, and very safe in counsel. This has been his reputation now for many years. He has also been very pros- perous, and continues to be very fully em- ployed. He has been a member of the Board of Education of Berkeley. He is prominent in the Masonic Order, and belongs to other fra- ternal organizations. He is a member of Cali- fornia Commandery, No. i. Knights Templar. On July 27. 1881. at Oakland. Mr. Chapman was united in marriage with Miss Lulu E. Medbery, who is a native of Wisconsin, and also a graduate of the University of Califor- nia, of the class of 1880. There are three bright children of the union — Alice Maybin. aeed seventeen : Lester H., aged fourteen ; and Charles Carroll, aged ten. HUGH T. GORDON. Hugh T. Gordon was born in Maury county, Tennessee, June 12, 1848, and comes from a noted Southern family. His grandfather, Chapman Gordon, was a Revolutionary soldier m the North Carolina line, and was in the bat- tle of King's Mountain, when a boy of six- teen years. His father was a captain in the Forty-eighth Tennessee. C. S. A. He died at V'icksburg. Mississippi, in 1862, when his son, our subject, was a lad of fourteen summers. His mother died before he was three years old; so, at the early age of fourteen, in the midst of the Civil War, with all of its devastation and blight, he was thrown upon his own re- sources. During the four years of the war there was no school he could attend, and he was compelled to work on the farm during that time, and for several years after. In 1869- 70 he was a student at the University of \'ir- ginia, and finished his education there. In 1872-73-74 he was the county superintendent of public schools in his native county in Ten- nessee, and met, combatted and overcame in his county to a large extent the prejudice existing at that time in the South to the i)ublic school system. Mr. Gordon studied law in the office of his brother, W. B. (jordon, at Columbia. Tennes see. and was admitted to the bar in 1872. In 1874 he was married to Miss Anna M. Nich- olson, the yomigest daughter of Hon. A. O. P. Nicholson, who was at that time chief justice of the Supreme Court of Tennessee, and at the beginning of the Civil War a senator in con- gress, his colleague being Andrew Johnson, afterwards President. Mr. and Mrs. Gordon have a delightful fam- ily of five children, three of them boys, strong, manly fellows, and two beautiful girls. These chifdren .'an trace their ancestry on both sides to colonial limes, and to the nobilitv of Scot- l.-md. Mr. ( iordon practiced law successfully in Columbia. Tennessee, in partnership with his l)rolher. till 188,^. when he went to southeastern 980 History of flic Bench and Bar of California. Arkansas, and formed a partnership with Col- onel J. W. Dickinson of Arkansas City. He lost his health there, and in 1887 removed to Los Angeles. California, and opened a law office in the latter part of 1888. He stands well with the bar ; is considered a good lawyer and safe counsellor, and is an honorable man. EDWIN W. FREEMAN. Mr. Freeman was born at Galesville, Wis- consin, October i, i860. After attending the common .ychools, he entered the Galesville University, to complete his education. The institution was founded by his uncle, Judge Gale. He began the study of law in the office of his father, G. Y. Freeman, who had a large general law practice in northwestern Wiscon- sin. Mr. Freeman was admitted to the bar in that state in the spring of 1887, and came at once to California. For a time he lived in Los Angeles, where he was clerk in the law office of W. P. Gardner. He soon changed his loca- tion to San Bernardino, and was clerk in the law office of Hon. H. C. Rolfe. Shortly after taking that position he and Judge Rolfe be- came partners, under the firm name of Rolfe & Freeman. In May, 1892, Mr. Freeman re- moved to Soutn Riverside, now Corona, and became the attorney of the South Riverside Land and Water Company, the Citizen's Bank, and the Temescal Water Company, besides doing a general nracitce. When Riverside county was created, in 1894, Mr. Freeman was elected as its first member of the assembly, and served at the session of 1892. In the spring of 1898 he became presi- dent of the Citizen's Bank of Corona, but re- signed the position not long afterwards, be- cause the duties thereof required a great deal of time, and seriously interfered with his law practice. Mr. Freeman removed to Los Angeles in February, 1899, and is now enjoying a good practice there. He married Miss Maude Fau- ver. of La Crosse, Wisconsin, in 1890, when he was residing at San Bernardino. The lady. who had varied accomplishments, died in 1895, while Mr. Freeman was serving in the legis- lature. HENRY C. GESFORD. Henry C. Gesford, a prominent member of the San Francisco bar, was born in Napa county, in this State, in 1856. He is a grad- uate of the University of Michigan, of the class of 1882. Before removing to San Francisco he won great success in law and politics in his native county, filling the offices of suoerintendent of schools and district at- torney. He was also for two terms State senator for Napa, Lake and Yolo counties, arid being Democratic in politics, had the pleasure of voting for two successful candidates of his party for United States senator, namely. Hon. George Hearst and Hon. Stephen M. White. In their election he took an active and prominent part. It may be fittingly stated here that ex-Sena- tor White died at his home in Los Angeles, February 21, 1901. some weeks after the sketch of him m this History had been printed, and just as this notice of Mr. Gesford was being written. His age was forty-eight years, and he was buried amid general mourning, with the ceremonies of the Catholic church. Mr. Gesford. when he joined the bar of San Francisco, retained his Napa clientage, and still has offices in both cities. As a lawyer, Mr. Gesford ranks high, and although a young man, there is no one in his profession better or more favorably known. Mr. Gesford is also much occupied in frater- nal circles, being a member of the Masonic order, the Odd • Fellows, and Native Sons of the Golden West. He is a past grand master of the last named fraternity. JULIAN P. JONES. Mr. Jones was born at Warren, Ohio. Aug- ust 14. 1852. His parents were English, his father being an iron worker. They removed to the then frontier in Iowa, when he was quite young, locating on a farm, where his bovhood William J. Herrin History of the Bench and Bar of California. 983 was spent until sixteen years of age. He ob- tained such education as the schools of the vi- cinity afforded. In 1873 he graduated from the High School at Marion, Iowa, supporting himself the while by teaching during the summer vacations and working in an office out of school hours while prosecuting his studies. On leaving school he went at once into the law office of Major J. B. Young, at Marion, taking up the study of law, and was admitted to practice in the District and Circuit Courts of Iowa in 1875, on examination held at Boonesboro, Iowa. In January, 1877, having removed to his chosen field for practice, Rockford, Illinois, he was admitted to the bar by the Supreme Court of the state of Illinois, and he continued in the practice at Rockford until the fall of 1886. in October, 1886 he was united in marriage with Eva, youngest daughter of Dr. Lucius S. Clark, a pioneer physician of that city, and, quitting his practice, at once set out for South- ern California. Locating in that section now constituting the county of Riverside, he divided his time between ranch life and practice, taking an active part in the erection of the county of Riverside. His home has been in Los Angeles city for about seven years. From that point his practice has extended into Orange and Riverside counties. He has one child, a daugh- ter, now eight years of age. WILLIAM J. HERRIN. William James Herrin was born on the i6th day of June, 1858, at Mooresville, Yuba county, California. After attending the public schools of the day he engaged in teaching, which he continued with success, tlius obtaining the means with which to procure a higher educa- tion, as he had become possessed of a desire to enter the profession of the law. Subse- quently he was a student at the state univer- sity, and also the Hastings College of the Law. He was admitted to practice in the Supreme Court of the State of California in 1885. We copy the following from the History of North- ern California, published m 1S91 : "Mr. Herrin's entrance upon the practice of his adopted calling was at Oroville, and here his subsequent career has been marked by a faithful adherence to professional duties and a ])rilliant manifestation of his ability as a lawyer. His conduct of several noted cases here won for him distinction. Mr. Herrin has risen wholly by his own efforts to tlie honora- ble position now accorded him. Without in- fluence or assistance from any one. he has overcome olistaclcs that to many would seem insurmoimtable, and at this time enjoys a lib- eral share of the law patronage of the county. In political matters he is an ardent Repub- lican and in the campaign of 1890 was the can- didate of his party for district attorney. By liis brother practitioners he is spoken of as a worthy member of the bar and one who prom- ises a great deal for the future." In 1892 Mr. Herrin removed to San Fran- cisco and formed a co-partnership with Geo. D. Shadburne (q. v.). This firm enjoyed a lucrative practice from the start. It was dis- solved by mutual consent in 1896, since which time Mr. Herrin has been practicing alone. Mr. Herrin is at present attorney for the sheriff of the City and County of San Fran- cisco, Hon. John Lackmann, the successful business man and former supervisor. The position of sheriff's attorney in that populous city is one of great responsibility. It is pro- vided for by law, with an official salary, the incumbent being selected by the sheriff. Mr. Herrin is a lawyer of great general capacity, and his practice is large and lucrative, includ- ing as it does, the business of several estates of magnitude, and heavy corporations. JACKSON HATCH. Jackson Hatch was born in Tuolumne county in this State, and received his educa- tion in the public schools, completing the course at the age of seventeen years. He pursued an additional course of study for the following two years, and at the age of nineteen engaged in teaching school in Co- lusa county, following that profession for two years. At the age of twenty-one he was admitted to practice in the Supreme Court, and was immediately elected district attor- ney of Colusa county, which position he held for four years. During this period he was engaged also in the conduct of an extensive civil practice. At the end of the term of his service as district attorney he entered upon a large criminal practice and in the four years following deifended in twenty-one murder cases. The most important of these was that of Huram Miller, who was charged with the murder of Dr. H. J. Glenn, the Demo- cratic candidate for Governor of this State in 1879. In 1884 Mr. Hatch removed to Red Bluff, in Tehama county, where he practiced his pro- fession, with business also in Shasta and Trin- ity. During this period he was engaged in many notable cases, among which was the action involving the removal of the county- seat of Shasta county. In 1888 he removed to San Francisco to take the position of first assistant United States district attorney tendered to him by General John T. Carey, the United States district attorney. During his incumbency of that office he was entrusted with most of the criminal and civil cases in which the gov- ernment was interested in the Ignited States District and Circuit Courts. In 1890 Mr. Hatch removed to San Jose, where he has since been. In that year he was named as one of the Democratic candidates for Associate Justice of the Supreme Court. The entire Democratic ticket, however, was defeated at the ensuing election. In 1894, Mr. Hatch was mentioned as a prominent candidate for Governor of this State, but declined to have his. name placed before the convention. 984 History of the Bench and Bar of California. Since 1890, he has been engaged in the prac- tice of hivv in San Jose and surrounding counties. He is at present one of the attor- neys for the Union Savings Bank of San Jose, and the attorney for the Commercial and Sav- ings Bank of San Jose, and for the San Jose and Santa Clara Railroad Company, and va- rious other corporations and large firms. Mr. Hatch is a prominent member of the Benevolent and Protective Order of Elks, being the exalted ruler of San Jose lodge No. 522, and a representative of that lodge to the grand lodge which held its session at Atlantic City in July, 1900. A. MORGENTHAL. Anton Morgenthal is a native of Lengenfeld, province of Sa.xony, Prussia, and was born in 1850. He came to the United States in 1871, from the Hastings College of the Law at San Francisco in 1879, and in the same year was admitted to practice by the Supreme Court at Sacramento. He has ever since been at the bar in San Francisco. Mr. Morgenthal's professional career has been one of activity and success from the be- ginning. In his commodious oifice in the Flood building he has gathered a splendid working law library, which also represents a large money value. He is a very careful and faith- ful practitioner. As a man he is of quiet tem- perament, and sincere nature. He is always maKHig friends and attracting clients. He is a member of the San Francisco Bar Association and of the American Legion of Honor. Mr. Morgenthal married, at San Francisco, in 1893, Miss Minnie Smith. They have one child, a son. GILBERT D. MUNSON. Gilbert D. Munson's ancestors were among the early settlers of New Haven and Hartford, Connecticut. And he is one of the vice-presi- and to California in 1876. Since the latter year he has always resided in San Francisco. He was educated at Hamburg, Germany, and at St. Louis, Missouri. He was graduated dents of the Munson Association of New Haven. He was admitted to the bar in New York City in 1876, after a course of study in the Columbia College Law School. After admission to the bar in Ohio, in the same year, he practiced law in Zanesville, Ohio, until elected to the Common Pleas bench in the first subdivision. Eighth Judicial dis- trict. November. 1894. Scveral'of the Su- preme Court reports of that state show the part he bore in important cases, while at the bar, notably, the Forty-seventh Ohio State Report. On retiring from the bench, after the expira- tion of his term of office, he came to Califor- nia, and has resided in Los Angeles and en- gaged in the practice of the law. 7 he Zanesville newspapers published of Judge Munson, .prior to his leaving Ohio for California, as to his official service, that he oc- cupied the uni(|ue position of never having had a decision reversed by the Supreme Court, and that he retired from office with the good will E. S. Salomon History of flic Bench and Bar of California. 987 and best wishes not only of every practitioner before him, but of all the people generally, without regard to party; and with the docket cleaned up to date, so that every case ready for trial could be tried when reached, if de- sired, without delay. Judge Munson is a veteran soldier of the Civil War. He served in the ranks as a private soldier, but commanded his regiment, the Sev enty-eighth Ohio Volunteer Infantry, at the close of the war as lieutenant-colonel, and was afterwards brevetted colonel. Since his admission to the bar of California he has taken jiart in the trial of a number of important cases, and acquired a valuable practice. E. S. SALOMON. Edward S. Salomon was born in the city of Schleswig. Germany, December 25. 1836. He came to America in 1854, and settled in Chi- cago, where he engaged as clerk in a store un- til 1857. He then commenced the study of law with Norman B. Judd, one of the most promi- nent and successful lawyers in the great north- west. While a student in Mr. Judd's office he became well acquainted with Abraham Lin- coln, who was a warm personal friend and con- stant visitor at the office of Mr. Judd. when in the city of Chicago on legal business. Mr. Salomon was admitted to practice in the Su- preme Court of Illinois in 1859. Soon there- after he became a member of the law firm of Peck, Buell & Salomon. At the commence- ment of the War of the Rebellion he enlisted and was commissioned a second lieutenant in the Twenty-fourth Illinois Infantry. The commander of this noted regiment was Colonel Hecker. who was a leader in the German Rev- DJution in 1848. Lieutenant Salomon was suc- cessively promoted, until he became major of his regiment. Early in 1862 a disagreement arose between Colonel Hecker and his officers, which caused his resignation. Major Salomon and several other officers of the regiment also resigned, following the example of their colonel. On tJie heels of this movement. Colonel Hecker and .Major Salomon proceeded to organize a new regiment, which they accomplished in a few weeks. This regiment was denominated the Eiglity-second Illinois Infantry. Hecker was elected colonel, and Major Salomon was elected lieutenant-colonel. In 1863 Lieutenant- Colonel Salomon was promoted and made col onel of the Eighty-second Regiment, which was at this time a part of the Army of the Po- tomac. The regiment participated in all the battles of that army, including Gettysburg. .\fter the battle of Gettysburg, the Colonel and his command joined the forces of Fighting Joe Hooker, which became a part of the Army of the Cumberland. Colonel Salomon took part in the .A^tlanta cami)aign. After the Atlanta camjjaign his reginienl w.is l)laced in and became a part of the .\rmy of Georgia, under conunand of General Slocum, and with this command Colonel Salomon marched with Sherman from "Atlanta to the Sea." .Subsequently he took part in the great l)ar;i(le in Washington on the 23d and 24th of May. 1865. At the close of the war he was brevetted brigadier-general "for distinguished gallantry and meritorious services." After the battle of Gettysburg General Carl Schurz. brig- ade commander, said in his report to General O. O. Howard : "Colonel Salomon of the Eighty-second Illinois displayed the highest or- der of gallantry and determination under very trying circumstances." Colonel J. S. Robinson, commanding the Third Brigade, Twentieth Army Corps, said : "I have the honor to respectfully request that you issue a colonel's commission to Lieutenant Colonel Edward S. Salomon, commanding the Eighty-second Illinois Infantry. It is my sin- cere belief that Lieutenant-Colonel Salomon fully deserves this favor, not only by his abil- ity and merit as an officer, but more particu- larly by the gallantry and efficiency he has dis- plaved in the campaign." General. Joe Hooker approved of the promotion in the following language : "I concur in the within recommen- dation. Lieutenant-Colonel Salomon has won the good opinion of all his comrades by his great gallantry and good conduct, and it will be but a just and graceful appreciation of his services to confer this preferment upon him." Brigadier-General A. S. Williams, in his rec- ommendation to Secretary of War Stanton, enumerated several battles in which Colonel Salomon distinguished himself as a courageous officer and efficient commander. He specially mentioned the fighting before Resaca, Georgia, on May 14 and 15, 1864; again, on the 25th of the same month at New Hope Gap ; at the bat- tle of Peach Tree Creek; before Atlanta, on July 20, 1864. "In the fight near Averyboro, North Carolina, Colonel Salomon led his regi- ment with great gallantry and skill." "At the battle near Bentonville, on March 19, 1865, Col- onel Salomon and command drew the unqual- ified admiration of all who witnessed their coolness and discipline under fire." In concluding his report. General Williams says: "Colonel Salomon has distinguished himself in other engagements besides those which have been mentioned. .\t Gettysburg and Missionary Ridge his gallantry was con- spicuous and challenged the highest admira- tion." On June 15. 1865, the Secretary of War informed Colonel Salomon that the Presidenr had commissioned him briiradicr-gener.-il, "for distinguished gallantry and meritorious serv- ices during the war." .\11 of the foregoing quotations and extracts relating to the General's record in cmmection with the army are taken from the records in the War Department at Washington, and may also be found in the History of the Rebellion, l)ublished by the government by virtue of an act of congres>^. hnmediately after the close of llie war. ( len- er;il Salomon returned to Cliicago. and was -oon elected county clerk, which was then one of the most lucrative offices in Illinois. He held this position for four years. President Grant then apnointed him (governor of Wash- ington territory. .\ few days before Governor .Salomon left for his new western home, a large number of prominent citizens of Chicago, among whom was General Phil Sheridan, the 988 History of the Bench and Bar of California. "Hero of Winchester," and one of the three great tt received his education in the public schools of this State. In 1890 he en- tered the Hastings College of the Law, one of the affiliated colleges of the University of California, from which he was graduated with distinguished honors in 1893. During his course through the law college he studied in the law offices of Senator C. W. Cross, one of the recognized leaders of the California bar, and it is to his guidance and direction during this period that much of Mr. Abbott's future success may be attributed. After gradu- ation from the law college, Mr. Abbott took an extended eastern tour, and returning in the latter part of i8o-». commenced the practice of the law at the First National Bank building, loi Sansome street. In i8os. he became as- 994 History of the Bench and Bar of Califorjiia. sociated in the practice of the law with Sen- ator C. W. Cross. Senator Tirey L. Ford, and Mr. Frank P. Kelly, of Los Angeles, nnder the firm name of Cross, Ford, Kelly & Ab- bott. This was recognized as one of the lead- ing law firms of California. Upon dissolu- tion of the firm. Mr. Abbott continued his law practice. In November, 1898. Senator Tirey L. Ford was elected attorney-general of Cali- fornia, and in January, 1899, appointed Mr. Abbott, deputy attorney-general, from San Francisco. The attorney-general assigned Mr. Abbott to the opinion department of his office, and he has been devoting his time and attention to that important and ever-increasing branch of the attorney-general's official business. Mr. -Abbott is among the promising lawyers of the younger generation, who are rapidly coming into prominence throughout the State, taking the jjlaces made vacant by the death of the men of learning, who have gained emi- nence and renown in the building up of the jurisprudence of the commonwealth. In April, 1900, Mr. Abbott was admitted to practice in the United States Supreme Court ; whereupon he, with Attorney-General Ford, argued the railroad tax case of Smith (as re- ceiver of the Atlantic & Pacific Railroad Com- pany) vs. Reeves, State treasurer of Califor- nia. 1 nis case was subsequently decided in favor of the State. Mr. Abbott has been a mcml)er of the Union League Clul) of San Francisco since 1898. H. P. ANDREWS. Mr. Andrews was born in Marion, Missis- sippi. May 4. 1861. His father's family were descendants of John Andrews, who came to this country in 1640. from England, having descended originally from a Scotch family of that name. Captain Abraham .Andrews, who was famous in the Revolutionary War, was the great grandfather of H. P. Andrews. The latter's father, William Penn Andrews, was born in the State of New York in 1825. When a boy he was taken by his parents to Ohio, where he was reared. When barely of age he and his brother, G. W. Andrews, who afterwards became a prominent Democratic politician in Ohio, and who was on the stand with V^alandigham when the latter made his famous speech which caused his exile, and who also became a brigadier-general in the Federal army, founded the Auglaize County Democrat, in Wappokenetta. Ohio, which pa- per still exists. During the year 1849 the father of our sub- ject removed to Mississippi, and for a time engaged in journalism, also in mercantile and farming pursuits. There he was married to a Southern woman. He was a Union Demo- crat, and ardently supported Douglas. He en- listed in the Confederate army during the early part of 1862, and was made captain of Com- pany I, Thirty-seventh Mississippi Infantry. He was engaged in the battle of luka, and in October, 1862, was killed in the battle of Co- rinth. After the close of the war, Mrs. Andrews, the mother of H. P., in common with most other Southern people, was very poor. The son was reared on a poor farm and was engaged as a farm hand from his earliest recollection. At the age of fourteen years he was given charge of the farm, and from that time on supported his mother and sister. His educa- tion was only such as could be obtained from the Marion Academy, a private institution which he attended after saving the money to pay the expenses of his own and sister's school- ing. Mr. Andrews began the study of law several years before he was of age, while still on the farm, and later on he went into a law office, and continued his reading. He was admitted to practice by the Supreme Court of Missis- sippi in 1882. He followed the profession and engaged in journalism until 1886, when he moved to Texas. He remained there until Jan- uary, 1888, when he came to California, and settled at Red Bluflf. where he has been en- gaged in the practice of law ever since. He has had a large business for many years, and good success and prosperity. Mr. Andrews has always been actively en- gaged in Democratic politics, and usually at- tends the State conventions, and meetings of the State central committee. In 1894 he was elected district attorney of Tehama county, and served in that capacity four years. At the close of his term he declined to become a can- didate for re-election. In T898 he was the Democratic nominee for attorney-general, and went down with his ticket. He ran several thousand votes ahead of the average vote of his oarty. Mr. Andrews was married in 189.^ to Miss Lilly Gay of Willows. She is a native daugh- ter, and a direct descendant of the poet, John Gay. Her ancestors served in the Revolution- ary War with distinction. Mr. Andrews is past grand in the Odd Fellows Lodge of Red Blufi". and has been a delegate to the Grand History of flic Bench and Bar of California. 99o Lodge. He is past chief ranger of tiie For- the degrees of B. S. and M. S. He studied esters of America, and has attended several law in the office of Hon. Barclaj^ Henley (q. v.) of their Grand Courts. He is also a Master of that city, attending also the Hastings Col- Mason. lege of the Law. and was graduated from the law college with the degere of LL. B.. in W. A. ANDERSON. W. A. Anderson, of Woodland, was born in the city of Sacramento, on August 6th. 1875. His parents dying while he was very young, he moved to Winters, where he read law, and was admitted to the bar on December 28th, 1896. He began the practice of law in the spring of iSgS, in Woodland, and the follow- ing July, sickness overtaking the district attor- ney of Yolo county, the Hon. R. E. Hopkins, Mr. Anderson assumed the duties of the office, and held the position until the expira- tion of Mr. Hopkins' term of office. On the loth day of April. 1899, he was elected city attornev of Woodland. RUSS AVERY. Russ Avery was born in Olympia, the capital of Washington, which state was then a terri- tory. He received most of his education in the State of California. He was graduated from the Los Angeles High School in 1890. and from the University of California in 1894. He attended Hastings Law College the next year, and was admitted to the bar in 1895. He then went to the Harvard Law School, where he was graduated with the degree of LL. B. cum laudc in 1897. After a short tour in Europe, he opened an office in Los Angeles, where he is now practicing with good success. His name has already become familiar to the bar and the public. EDWARD J. BANNING. Mr. Banning is a native of the great city where, at the age of twenty-five, he became as- sistant United States attorney. He was born Tune 6. 1873, and was graduated from St. Ig- natius College. San Francisco, in 1892. with 1895. He became assistant United States at- torney under Hon. Frank L. Coombs, on De- cember I. 1898, and is still occupying that important position. LEWIS W. ANDREWS. Lewis W. Andrews, of the Los Angeles bar, was born at Mt. Vernon. Missouri, April 22, 1869. Mr. Andrews comes of a family of law- yers, i-iis father. Lindley M. Andrews, prac- ticed law in Missouri and Kansas for a num- ber of years. His two older brothers, Horace and A. V., comprise the firm of Andrews Brothers of Norwalk. Ohio, who are well known through northern Ohio as attorneys and advocates of great ability. Lewis W. Andrews received his early edu- cation in the public schools of Ohio and Illi- nois, which was su])plemented by a course in the collegiate dei)artment of the Northern Illi- nois Normal School at Dixon, Illinois, from which institution be graduated in 1887, with the degree of d. S. He studied law for a num- ber of years under the tuition of his father and his brothers, and subsequently with Hon. B. T. Williams, Superior Judge of Ventura county. He has been a resident of California for about twelve years, during which time be has been identified with many of the new and progressive enterprises of Southern Califor- nia. In the fall of 1891 he became the secre- tary of Throop Polytechnic Institute of Pasa- dena, being the first incinnbent of that ])osi- ti(in, wliicli he held for two years, during which time lie was also instructor in history. In 1895 Mr. Andrews settled in Ventura, where he formed a nartnership. for the prac- tice of law, with Hon. T. O. Toland (at nrosent nu'ml)er of the State Board of Equal- ization), under the firm name of Toland & .Xndrews. wlio durin:.; the past six years have 996 History of the Bench and Bar of California. been attorneys for the American Beet Sugar Company, owners of the great factories at Ox- nard and Chino ; Bank of Uxnard, Santa Paula Water Works, and other leading corporations of Ventura county. Tlie firm enjoyed a large and lucrative practice. In the fall of igoo being tendered the client- age of a number of corporations. Mr. An- salt water, before the mast, and afterwards set- tled in San Francisco, California, where he occupied responsible mercantile positions until 1894. ^f" that year he commenced the study of law in the office of Allen & Flint, Los Angeles. He was admitted to practice by the Supreme Court of California in April, 1896, and re- mained in the office of Allen & Flint until the drews moved to the city of Los Angeles to en- gage further in the practice of his chosen profession, and is now the legal representa tive of a number of the wealthiest corporations in Southern California. His practice is large and general, his time being occupied prin- cipally by corporation and civil busness. As has been stated before in this History. "The modern lawyer is essentially a man of afifairs." This is true of Mr. Andrews, who is essentially a business lawyer. While he has been very successful as a trial lawyer, yet his reputation has been established not so much by his ability to try causes for his clients as his success in advising them, and skill in managing their afifairs in such manner that a resort to the courts is seldom necessary. He holds ofificial positions in the Los Angeles Herald, the Pacific Electrical Works. Colo- nia Improvement Company. Bank of Oxnard. and other corporations, of which he is the legal adviser. In 1892 Mr. Andrews was married to Miss Abbie Crane of Ventura county. He has two children, a boy and a girl. He is a Repub- lican in politics.,^ DONALD BARKER. Donald Barker of the firm of Flint & Barker was born at Hartley, Ontario, Dominion of Canada, March 13, 1868. His father was Wil- liam Barker, a merchant, who died when our subject was two years old. The son removed to Rochester, New York, when eleven years of age, and attended the public schools there and at Cleveland, Ohio. He spent two years on dissolution of that firm, in the same year, by- reason of the election of Judge M. T. Allen to the Superior bench, and the appointment of Frank P. Flint to the office of United States attorney for the southern district of California. A new partnership was then formed with Mr. Flint, which still continues. The firm has the business of several financial institiuions, and enjoys a large practice. WALTER J. BARTNETT. Walter J. Bartnett was born at Pacheco, Contra Costa county, California, May 22, 1866. He was educated at the Boys' High School, San Francisco, the University of California (College of Letters), and the Hastings Col- lege of the Law, receiving from the university the degree of A. B., and from the law college that of LL. B. He was admitted to the bar of the State Supreme Cpurt, in June, 1890, and began practice at San Francisco. In 1895 he l)ecame a member of the old-established law firm of Guimison & Booth, which still con- tinues as Gunnison, Booth & Bartnett. This native son is a man of higii ideals and the purest character, and attained at an excep- tionally early age a prominent place in his pro- fession and a large practice. We have watched his course with much interest from its begin- ning, in i8go. WILLIAM A. BEATTY. William .Adam Beatty was born December 23, 1861. of Irish parentage, his father being a capitalist. Fie is a graduate of the University Histoi'v of the Bench and Bar of Califoriiia. 997 of California, and was admitted to the bar by the Supreme Court at San Francisco, June 30, 1887. He has ever since been engaged in law practice in that city. He is a very compe- tent attorney, a man of strong character, well- liked, and has been busy and successful at the bar. WILL M. BEGGS. Among the younger members of the bar at San Jose we find Will M. Beggs, who occupies a suite of three offices in the Knox block. He was born September 2, 1867, in Mercer county, Pennsylvania. His early life was spent "go- ing west" in a covered wagon, with the other members of his family, and in that way he trav- eled over Tennessee, Iowa, Kansas and Mis- souri, arriving finally in the beautiful Santa Clara Valley, at the age of six years. Be- tween attending the district school and doing "chores" at home on the farm, his time was occupied until he was about sixteen, when for two summers he was employed as storekeeper at one of the large lumber mills near the Yo- semite Valley. At eighteen he passed the "county examination," and received a certi- ficate entitling him to teach school. He taught his first and last school four terms, and de- clined a further engagement for the oppor- tunity of more lucrative employment in farm- ing, to which occupation he turned his atten- tion in the fall of 1888. In that year, with the assistance of three other parties, he built the first successful cheese factory in then Tu- lare, but now Kings county, California. This employment soon grew irksome, and in the spring of 1889 the ranch was sold and the pro- ceeds invested in a retail mercantile business in Los Gatos. A successful business was soon established, and continued for over a year, un- til, in April. 1890, it was wiped out by a dis- astrous conflagralion. which entailed a very heavy loss. During the sunnner nf 1891. there being no o])ening that seemed to invite investment. and after a very careful survey of the future and the opportunities open to a young man without trade and no special occupation, with a growing family on his hands, Mr. Beggs concluded to try the law as a profession, and for that purpose, in the company of his wife and child, he spent the two years ending June 30, 1893, at Ann Arbor, Michigan, upon which latter day he graduated with honors from the law department of the famous university in a class of 325 law graduates. Immediately after graduating he returned to Los Gatos, Santa Clara county, where he made his home for the next seven years, but main- tained his office at San Jose. During that pe- riod he occupied the position of city attorney of Los Gatos. In the fall of 1800, as his practice was in- creasing to such an extent, Mr. Beggs moved to San Jose, where he now resides, and exoects to make it his home. He has one of the finest offices' in San Jose, and has one of the largest practices of the 125 attorneys in that city. While devoting most of his attention to gen- eral practice, he has found time to become in- terested in oil and mining, from which invest- ments he has come out many thousands of dollars ahead. He has push and energj' and is very attentive to the details of his cases and to this alone does he attribute his success in his chosen profession. RICHARD BELCHER. Richard Belcher was born at Marysville, in this State, on January 17, 1868. He was grad- uated from Amherst College in 1889, with the degree of A. 13.. and from Hastings College of the Law in 1892, with the degree of LL. B. He has been in practice at Marysville since July, 1892. Mr. Belcher has been referee in bankruptcy since August, 1898, when he was appointed by United States District Judge Dc Haven. He was annointed a trustee of Chico State Nor- mal School, by Governor Gage, in May, 1899. He has been in charge of the estate of Judge Isaac S. Belcher since the latter's death, in November, 1898. Mr. Belcher's father was Isaac S. Belcher, just named, once Judge of the Supreme Court of California. His mother, Mrs. Adeline N. Belcher, is living, and resides in San Fran- cisco. She is the eldest daughter of the late William T. Johnson, cashier of the Granite National Bank of Augusta, Maine, sometime speaker of the house of representatives of Maine, mayor of the city of Augusta, etc. W, C. Belcher, late of the San Francisco law firm of Mastick, Belcher & Mastick. and Hon. E. A. Belcher, recent Superior Judge of the city and county of Snii Francisco, were uncles of his. Mr. Belcher was united in marriage to A. Josephine Ward, at Amherst. Massachusetts, on June 6. 1892. and has two children. He is a Knight Templar, and a thirty-second degree Mason. He has proven worthy of his heritage, and turned his splendid opportunities to good 998 History of the Bench ami Bar of California. account. He is a strong, steady, self-possessed character, and at the age of thirty-three holds an advanced place in the profession. THEODORE A. BELL. The present District Attorney of Napa county, was born in the city of Vallejo, Cali- fornia, on the 25th day of July, 1872. At the age of nineteen he became a teacher in one of the public schools of his county, and while engaged in this pursuit prepared himself for admission to the bar. At his majority he suc- cessfully passed an examination before the Supreme Court. One year later he was nom- inated for district attorney by the Demo- cratic party. Although the county gave the head of the Republican ticket a majority of over five hundred, he was elected by a ma- jority of over four hundred. After serving four years he was again nominated for the same office in 1898, and re-elected by a large majority. His present term will expire in January, 1903. ALLAN BRANT. Allan Brant, of the law firm of Brant & Brown, of San Jose, is a native of Michigan and passed through the common schools of that State. He graduated from the Benton Harbor College with the class of '89 and after wards taught in the public schools in Michigan and Indiana until the summer of 1894. In th : fall of '94 he entered Stanford University and remained there one year in the study of law. In December, 1895, he was admitted on exam- ination before the Supreme Court, to the bar of California, and In the following !<"ebruary took up the practice of law in San Jose. In January, 1897, he formed a law partnership with F. B. Bown, which still continues. When the war with Spain broke out, Mr. Brant enlisted in the First California U. S. volunteer infantry, and went with his regi- ment to the Philippine Islands, where he served in the Spanish-American war, 1898, and in the Filipino-American war, 1899. Among engage- ments participated in by him were the assault on the capture ni Manila from the Spanish, August 13, 1898, and the engagement with the Filipino enemy at Patcros. February 14. 1899. At the latter engagement he received a severe gunshot wound in the shoulder, in the charge UDon the enemy, and was carried from the field. From that time he was in the hospital at Manila until May 22nd, when he was dis- charged for disability from the effects of his wound. He still carries the bullet somewhere in his body, a constant reminder of his thrilling experience. .^fter his discharge he visited China and Japan and later returned to San Jose, California, where he resumed his old place in the firm of Brant & Brown. A letter received by the publisher of this History under date of January 16, 1901. jointly signed by Messrs. F. B. Brown and Allan Brant, states that they have dissolved partner- ship. J. H. BIDDLE. Julian Hiester Biddle, of San Jose, was born in the old and picturesque town of Elkton, the county seat of Cecil county, Maryland, and situated on the eastern shore of that State, on the 13th day of August, 1874. His family has been represented, since the early history of the country, in legal and mili- tary circles. . He (Luther Bru- sie ) came to Indiana when young, with Tiis parents. After finishing his common school education, he began the study of medicine, and on the 27th of February. 1847, was graduated at Indiana Medical College, Indianapolis. In the fall of 1850 he came out to California across the plains, and engaged in merchandise at Put's Bar. in Amador county. In 1854 he went back to Indiana, and gave his atten- tion to the practice of his profession until the breaking-out of the Civil Wht. He offered his services in behalf of his country, and on the 22d of October. 1861. was commissioned by Governor Oliver P. Morton as assistant sur- geon of the Forty-tifth regiment (Third cav- alry) Indiana volunteers. In consequence of injuries received in action, he was honorably discharged from the service. In i86q he again came to California, bringing his family, via Panama. He located in Amador county, where he was a physician of high standing and a prominent citizen until his death, which oc- curred in May. 1887. He v/as a stalwart Republican, and devoted to the interests of his party. He represented the vlistrict in which he resided in the State legislat':re of 1880. He was an active member of the State Medical Society, and of the Grand Army of the Re- public. Judson Brusie. with whose name this sketch commenres, was reared in Amador county, and educated there and at the University of the Pacific, in which institution he took the Latin and scientific course. He commenced reading law with Judge A. P. Catlin, and continued his legal studies in the office of Clunie & Knight. San Francisco. He then returned to Amador county, and was there admitted to the bar in 1885. Mr. Brusie rep- resented Amador county in the legislature of 1887-88, being the youngest member of the assembly, and he has since reoresented Sacra- mento county in the same body in the twenty- ninth and thirty-first sessions. WILLIAM A. BOWDEN. This gentleman was born in Western New York, in December, 1864. In early youth he moved with his parents to' Southern Indiana, and in the public schools of that state were laid the first foundations of the training and education that marked his after life. In 1876, while yet a mere youth, Mr. Bowden moved to this State, finally locating at San Jose, where his father engaged in farming. In tho excellent pu])lic schools of that city, and im- der the tutelage of able professors at Santa Clara College. Mr. Bowden's school training was completed. The Supreme Court of Cali- fornia admitted him to the practice of law in 1886. although he did not actively engage in practice until four years later. During tlie interim he entered into public life, serving as court clerk under the late Francis E. Spen- cer, then judge of the Superior Court of Santa Clara county. Upon the expiration nf his term of ofifice. Mr. Bowden immediately went into practice. locating in the Bank of San Jose building, where he has ever since maintained his of- fice. He took rank at once among the ablest members of a bar regarded as one of the best in California, and composed mostly of men older than himself. The celerity of his as- cent to distinction in his profession may be inferred from the fact that at this time many of the largest corporate interests of the wealthy and populous county of Santa Clara are guided by his judgment. In both his pri- vate and professional life Mr. Bowden is known as a man of positive character; strong in his convictions and fearless and forceful in expression, his has not alwaj-s been a path of roses. But all this has been compensated for by the highest measure of professional success. In 1894 Mr. Bowden was married to Alice I. Hobbs. the yoimgest daughter of Celden X. Hobbs, one of the pioneers of Cali- fornia. HENRY E. CARTER. Mr. Carter is one of a number of promi- nent members of the Los Angeles bar who are natives of California. He was born Septem- ber 26, 1865. His father, a native of Connecti- cut, was a civil engineer. Mr. Carter re- ceived his education in both public and private schools, and prepared himself for the bar by reading in private law offices at Los Angeles. He went to that city to live in 1888, at the age of twenty-three, and was admitted to the bar by the State Supreme Court in April, 1890. He has always since been in good practice there. For some years he has been in partner- ship with Mr. Isidore B. Dockweiler, a na- tive of Los Angeles, under the firm name of Dockweiler & Carter. The gentlemen are of opposite politics. Mr. Carter further dififers from his partner in that he is not a married man. The firm of Dockweiler & Carter stands very high and strong at the bar of Southern California. It is perhaps the most advanced of the younger firms of that great section, no other firm of the age leading it in point of ability or amount of business. Mr. Carter was deputy attorney-general un- der Hon. W. F. Fitzgerald for a full term of four years, which ended in January, 1899. I" November, 1900, he was elected, as a Repub- lican, to the assembly from the seventy-fifth district, which comprises one-third of Los An- geles city. He is serving in that body as this History is being closed. PAUL BURKS. Mr. Burks, who has not yet attained the age of thirty years, comes from a long and illus- trious line of Southern ancestors. He was born in Logan county, Kentucky. He is the third son of Dr. Jesse H. Burks, a veteran of the Confederate .Annv, and Sabina Dismukes Burks. .At an early age his parents moved to Los .Angeles, California, where his father was prominently identified with the progress and development of the city uijlil the time of his death. Mr. Burks rectived an academic and high 1006 History of the Bench and Bar of California. school education, read law, and entered the celebrated Cumberland University, at Lebanon, Tennessee. He passed the bar examination and was admitted to the bar of Tennessee. He received the degree of Bachelor of Laws from the university named. He subsequently pur- sued post graduate work, and had conferred upon him the degree of Master of Laws by the Columbian University. After leaving college, he returned to his home, was admitted to the bar of California in 1898. and entered upon the active practice of In 1892 Mr. Childs was elected county clerk of that county, and was re-elected in 1894. In December, 1895, he passed the examination before the Supreme Court of California. He resigned the office of county clerk in November. 1896, to accept the position of minute clerk of the State senate, and in the spring of 1897 be- gan the practice of law at Crescent City. In 1898 he was elected district attorney of Del Norte county, which office he now holds. Mr. his profession in Los Angeles. He made his initial bow to the public when associated with Hon. Will A. Harris and Earl Rogers, Esq., as junior counsel in the successful defense of William Alford, who was tried for the murder of Jay E. Hunter, a member of the Los An- geles bar. Mr. Burks is a staunch Republican in poli- tics and takes an active interest in party af- fairs. He formed a partnership with Philip B. Voorhees, Esa.. and is now senior member of the prosperous firm of Burks & Voorhees, with offices in the Henne building, Los An- geles. The firm represents large individual and corporate interests. JOHN L. CHILDS. John L. Childs, district attorney of Del Norte county, was born on the 27th day of May, 1863, in England. He was taken to the state of New York by his parents at the age of three years, and was brought up at Indian Falls, in the western part of that state. In 1885 he was graduated from Stakey Seminary, located on the western bank of Seneca Lake, in which institution he taught for two years; In 1888, while acting as principal of Greenville Acad- emy, at Greenville, New York, his health failed, and he went to Southern California, where he resided for two years, going to Del Norte county in 1891. He there engaged in the newspaper business, as proprietor, of the Crescent City Nezvs. Childs is a Republican in politics, and was one of the delegates from the First congressional district to the Republican national convention held at Philadelphia, in June, 1900. JOSEPH F. CHAMBERS. Mr. Chambers was born in Clinton county, Illinois, April 3, 1862. His father was a farmer. The son remained on the farm until the age of nineteen, except winters, when he was in school. He attended the district school and graded school at Clement, Illinois, and the State Normal School at Ypsilanti, Michigan. He began the study of law in the office of Hon. E. P. Allen, at Ypsilanti, but before ad- mission to the bar his study was interrupted by the severe illness of his father. He came West in 1881, and was engaged for about two years in railroading in Colorado and New Mexico. Mr. Chambers settled at Los Angeles in 1884. He was clerk of the Justice's and Po- lice Court under Judge Austin for about nine years, during which time he resumed the study of law. He was admitted to practice in 1890. After leaving the position of clerk under Judge Austin, he engaged in general practice in Los Angeles until 1897, when he was appointed a deputy by Hon. J. A. Donnell. district attor- ney, and was later re-appointed by James C. Rives, the present accomplished incumbent of that office. Hoivard A. Broughton History of the Bench and Bar of California. 1009 HOWARD A. BROUGHTON. Hon. Howard Anthony Broughton was born in the city of Santa Cruz, California, on the 6th day of October, 1863, the son of William Wallace Broughton, who was born in Tona- wanda, New York, in 1836. The father was reared as, and has followed the pursuit of jour- nalist, and is also an attorney-at-law. He, tlie father, came to California in 1858, and settled in Santa Cruz, California, where the son was born. The latter moved with his parents, while a child, to Santa Barbara county, where he grew to manhood, receiving his education in the public schools. He entered the Hastings College of the Law in 1885, and was graduated therefrom with honors in 1888, receiving the degree of LL. B., when he was admitted to practice bv the Supreme Court. Meantime, he entered the offices of A. A. Sargent, ex-United States senator, and Frank M. Stone, in San Francisco, and there finished his practical course of study of the law. He remained in the office of Sargent & Stone for something like three years, leaving to take up the practice of law in Pomona, Los Angeles county. Cali- fornia, in i8go. Mr. Broughton quickly obtained recognition from the people of Pomona by reason of his merit and capability. He is at the present time attorney for the leading banks, the local water company, and various corporate interests cen tered at Pomona. He has always taken an in- terest in poiuics, and for years has been the representative of his section of the county, in city, county and State conventions of the Re- publican party. In November, 1900, he was elected to the assembly from the Seventy-first district by the largest majority ever given a representative in that district. His ability was immediatelv recognized in the late thirty-fourth session of the legislature, and, contrary to pre- cedent, this being his first term, he was placed at the head of the committee on corporations of the assembly. his profession. On September ist 1899, he formed a partnership with E. A. Rea, the subject of another sketch, under the firm G. W. COBB. Charles Wellington Cobb was born at the City of Gilroy, Santa Clara county, Califor- nia, on August 15th, 1872. His parents are old residents of Santa Clara county. His family being engaged in commercial pursuits, and he being an only son, he originally pre- pared himself for a career in that line, re- ceiving, in addition to an otherwise liberal education, one in, and making a special study of, commercial affairs and banking. For a number of years he had valuable practical experience in those branches. His natural inclinations and desires, however, soon led him to the law, and after a thorough course of study under able tutorage and supcrvis.ion. and a course in the practical affairs of law; and practice in the office of Daniel W. Bur- chard, of San Jose, he was admitted to the bar by the Supreme Court of the State of California in May. 1807. From that time, and uo to September. 1809, he was associated with Mr. Burchard in the active practice of name of Cobb and Rea, and is now engaged in practice at San Jose, as a member ot that firm. E. C. COOPER. Edgar C. Cooper was born at Eureka, in this State, on the 6th day of October, 1868. He was educated Mn the public schools of Eureka. He entered Hastings College of the Law in 1888, and was gl-aduated in the class of 1891. He immediately returned to the city of Eureka, and entered upon the practice of his profes- sion. He has since been engaged in some of the more important cases before the courts of Humboldt county. In 1898 Mr. Cooper was elected to the office of district attorney of Huni'boldt county, re- ceiving the highest vote and largest majority of any on his ticket. He has been very suc- cessful in the office, and has lost but one case in the two years of his incumbency. Mr. Cooper's father was born in England, 1010 History of the Bench and Bar of California. coming to this country at the age of six years. For nineteen years he was receiver of the United States Land Office at Humboldt, CaH- fornia. Mr. Cooper's mother was born in Maine, and was a direct descendant of Colonel Prescott. the commander at Bunker Hill. Her maiden name was Wilder, and she came from the same stock which produced the Wilders of Massachusetts. CHARLES T. CONLAN. Charles Thomas Conlan, a Judge of the Po- lice Court of San Francisco, was born in Sac- ramento city, California, September 6, 186.4. He is of Irish parentage, and was educated at Santa Clara College. He was admitted to the bar on the 4th of May, 1886. After serving a term as prosecuting attorney of the San Fran- cisco Police Court, he was, in November, 1892, elected, on the Democratic ticket, as Judge of that court, and, by successive re-elections, has held the office ever since January, 1893. J. S. CALLEN. The above is a portrait of J. S. Callen. Esq., residing at San Diego, California, recognized by the thousands who know him as a lawyer and a man in every sense of the word. ROBERT M. CLARKE. At the age of twenty-one years this gentle- rnan has a good law practice, and stands as high as any man in Ventura county in popular estimation. He has established a name for de- votion to duty, and for ability in his call- ing. Mr. Clarke was born in Ventura county, March 5. 1879. He is a graduate of the High School of Santa Paula, but not of any law school. He was admitted to the bar in April, 1900. He is a prominent Mason, and is presi- dent of Santa Paula Parlor, Native Sons of the Golden West. He married, at Carpinteria, at the close of the year looo. Miss Edna Thur- mond, a successful school teacher of his county. At the election in November, 1900, he was chosen, as a Republican, a member of the assembly by a majority of 413 votes over Hon. W. E. Shepherd, the city attorney of Ventura, and is serving in that body as this History is being printed. He is the youngest member of the legislature. On the day succeeding his election to the assembly, November 7, his former law partner, George E. Farrand, a Democrat, aged twenty-two, was appointed county clerk of Ventura county. WlLLiAM T. CRAIG. William T. Craig was born at Watsonville, Santa Cruz county. California, March 8, 1866. His father. Judge Andrew Craig, was district attorney and County Judge of that county, his official period being from 1872 until 1880. In the latter year he removed with his family to San Francisco. William T. Craig, after R. H. Countryman History of the Bci^ch and Bar of Califoniia. 1013 spending two years in the office of the city and county attorney of San Francisco, entered the State University, at Berkeley, in 1885, taking the course in letters and political science, and in 1889 he was graduated with the degree of Ph. B. Immediately afterwards Mr. Craig en- tered Hastings Law College, taking an irregu- lar course under Judges McKinstry and Slack, and in 1890 was admitted to practice by the Supreme Court at the Sacramento term. He then formed a partnership with his father in San Francisco, and continued to practice law in that city, under the firm name of Craig & Craig, until 1893. when he removed to the city of Los Angeles. Shortly thereafter he married Miss Etta Brown of San Francisco, and he now re- sides with his family and practices his profes- sion in Los Angeles. Mr. Craig is a member of various clubs and secret societies, in which he takes an active in- terest. In politics he is a Democrat, but since 1892. in which year he ran, and was defeated, for city and county attorney of San Francisco, he has taken no active part in politics. Mr. Craig lias "^iven his special attention in his practice to corporation and mercantile law, in which branches he has succeeded in estab- lishing a lucrative business. In 1900 he formed a partnership with Eber T. Dunning, under the firm name of Dunning & Craig, with offices at suites :i22, 2,22 and 324 Bullard Building, Los Angeles. The firm are attorneys for the Wholesalers' Board of Trade of Los Angeles, for a large number of wholesale establishments and for some of the leading trust, mining, title abstract, building and loan, mercantile, and other corporations in Southern California. R. H. COUNTRYMAN. Robert Harmer Countryman was born in Philadelphia, Pennsylvania, September 11, 1864. While attending school his health was impaired by overstudy, and he came to Cali- fornia for rest and recreation, intending to re- turn to Philadelphia. He improved so rapidly that he determmed to remain here. Entering Hastings College in August, 1885. he was grad- uated therefrom in June, 1888. He went into the office of Jarboe, Harrison & Goodfellow, San Francisco, shortly before he began attend- ing the law school, and remained with that firm until Judge Harrison went on the Su- preme bench, in January, 1891. Thereafter he was associated with Mr. Jarboe until his death, in July. 1893. JIc has been i)racticin^ 30th birthday Mr. Poage was married to Miss Ella Laugh- lin. then one of the teachers of the Ukiah public school. He has a pleasant home in the suburbs of Ukiah. Mr. Poage is also in- terested in fruit culture and has one of the prettiest prune orchards in the vallcj; situated near his home. LOUIS C. PISTOLESI. Louis C. Pistolesi, who is fast taking a prominent position among the members of the San Francisco bar, was born at San Fran- cisco on the 1st day of January, 1866. His family, one of the oldest in Italy, counts amongst its sons many distinguished in the arts and sciences, and gave its name to the ancient city of Pistola. His father, G. Pis- tolesi, is one of the best-known merchants in He has earned an en\iable repulati(jn for the earnest and energetic manner in which he guards the interests of his clients and has been rewarded by a considerable practice. He is one of the most popular members of the order of Native Sons of the Golden West, and on the occasion of the reception tendered to the returning California Volun- teers after the Spanish- American war, he was selected grand marshal of the largest parade ever seen in San Francisco. He is past president of Sequoia Parlor. N. S. G. W., and now a deputy grand president of that order. R. F. ROBERTSON. R. F. Robertson, city attorney of Los Gatos, Santa Clara county, was born in Mazatlan, Mexico, on October 12, 1863, his father, R. L. Robertson, being at that time United States consul at that i)ort. He came with his parents to San Francisco when three months of age, and tliere received the rudiments of his education in the public schools. At the age of twenty years he moved to Los Gatos. where he has since con- tinuously resided. He is well established in the practice. Mr. Robertson has been an active worker in fraternal matters, having been presiding officer in the local lodges of A. O. U. W., I. O. O. F., K. of P.. and F. & A. M. W AI.ri'R H. ROBINSON. Walter 11. Robinson came lo California when four years old. and with his parents set- tled in Los Angeles, where he obtained his 1064 History of the Bench and Bar of California. education. His father died lliere when the son was very young, and the latter earned his own Hving and assisted his mother while pre- paring for his future career. He studied law witlv S. P. Mulford, now of Mulford & Pollard, entering that office in 1890. He re- mained there until 1893, when he obtained a lucrative position in a prominent law office in San Francisco, and while he had a great deal of work and obtained much experience, he had to work at night to prepare for examina- tion before the Supreme Court. He was ad- mitted to practice in 1896, and immediately thereafter became associated with Joseph H. Moore, of the old law firm of E. J. & J. H. Moore one of the oldest and best established firms of San Francisco. He remained with Mr. Moore until the latter's death, on Feb- ruary 8, 1899, and took over his offices and practice, which consisted principally of pro- bate and land title matters. Mr. Robinson has continued with success in the same branches ever since, and is now enjoying a lucrative practice. It will be seen that he owes his success entirely to his own efforts. E. M. REA. Mr. Rea, of the San Jose law firm of Cobb & Rea. was born at Eureka, California, Jan- uary 23, 1874. He was graduated from Leland Stanford University in 1895, with the degree of Bachelor of Arts, and from the law depart- ment of Harvard University in 1898, as LL. B. He was admitted to the bar of the Supreme Court of California, September 8, 1898, and has since been practicing at San Jose, in asso- ciation with C. W. Cobb, with offices in the Rea Building. A sketch of Mr. Cobb is on another page. This is a strong and active firm, conducting a most profitable business, and in high favor with the bar and the people. GEO. T. ROLLEY. George T. Rolley was born in Morris, Grun- dy county, Illinois, on the 5th of February, 1874. At an early age his parents moved to Fortuna, California, where he received his education. He studied law with Hon. J. N. Gillett and was admitted to practice before the Supreme Court of California in June, 1895. He is a member of several fraternal orders. Mr. Rolley is a Republican, is very em- phatic in his expressions on expansion, the holding of the Philippines, and believes the United States should have the finest navy afloat. He was prominently mentioned as a candi- date for State senator for the first senatorial district in 1900. He was appointed attorney for the public administrator of Humboldt county in January, 1899, and still holds the position. His home and office are at Eureka, California. There are few young men more worthy of confidence or more capable, and he has a good clientage. A. RUEF. This gentleman, at the age of thirty-six years, is experienced and mature at the bar. His father, Meyer Ruef, is a prosperous citi- izen of San Francisco, now little past life's prime, and actively engaged in business in the Edgar D. Teixotlo History of the Bench and Bar of California. 1067 line uf real estate. He gave his son a first- class education and saw him press his way, now a good many years ago, to a front place in his profession and also in the councils of the Republican party. Abraham Ruef was born in San Francisco on September 2nd, 1864, and has always lived in that city. He was graduated from the University of California, academic depart- ment in May, 1883, and from the law depart- ment, Hastings College of the Law, in 1886. He has an extensive general practice, and has been connected with some of the most notable cases tried in our great city in recent years. In 1899 he was attorney for the public admin- istrator. Mr. Ruef speaks fluently several languages. His addresses to court and jury are sincere, spirited and demonstrative, and are always well received. He has acquired by his law practice a fine estate. He has always been "in politics," and with his professional and party engagements, he is one of the busiest of men. EDGAR D. PEIXOTTO. Mr. Peixotto was born in New York on December 23, 1867, and, although he is, at the close of 1900, only thirty-three years of age, he has been for seven or eight years past much in public view by reason of his connec- tion with important litigation, his able conduct of trials and his general ability as a public speaker. Mr. Peixotto comes of a distinguished fam- ily that easily traces its ancestry to remote times. The connection of the Peixotto family with America dates from the early s^'tlement of Rhode Island, in the latter part of the sev- enteenth century. His grandfather, Dr. D. L. M. Peixotto, was a distinguished New York physician, a writer of ability, and dean of the faculty of medicine of Columbia College. His uncle, Benjamin F. Peixotto, was an eminent lawyer, at one time associated with Stephen A. Douglas, practiced for a short time in San Francisco, and became distinguished in the diplomatic service of the United States, oc- cupying the positions of minister to Roumania, under President (jrant. and consul at Lyons, under President Hayes. Mr. Peixotto's fa- ther, Raphael Peixotto, holds a high and re- spected position in the San Francisco com- munity, and is a successful merchant. His brother, Ernest C. Peixotto, is the artist and writer whose work is so well known to the readers of Scribners, and another brother, Sidney S. Peixotto, has an enviable reputation through his connection with i)liilanthropic work among the Boys' Clul)s of San Fran- cisco. His sister, Jessica B. Peixotto. has the distinction of being the second woman to re- ceive the degree of Doctor of Philosophy in the University of California. Mr. Peixotto was educated in the public schools of San Francisco, was graduated from Hastings College of the Law in June, 1888, and admitted to the bar of the State Supreme Court in January, 1889. After his admission he spent a year in travel in the United States and Europe, and then began practice at San Francisco. In Decem- ber, 1893, he became assistant district attor- ney of San Francisco, and had a distinguished part in the administration of the afifairs of that office in a most eventful period of its long his- tory, iiis principal was Hon. W. S. Barnes, who held the office for three terms. Mr. Peix- otto conducted the prosecution of Patrick Col- lins, who was convicted of murder and hanged. He conducted the first trial of Jane Shattuck, who was convicted of murder and sentenced to life imprisonment, but who was granted a new trial by the Supreme Court. Mr. Jr*eixotto was Mr. Barnes' only assist- ant counsel in the trial of William Henry The- odore Durrant, for murder, in the summer of 1895 (the crime of a century), and made the opening address to the jury on behalf of the people. This argument is an excellent example of Mr. Peixotto's forcible and suc- cinct style. In 1899 he wrote the history of that case, which was published by a Detroit house. The work is well illustrated and is de- signed both for the general reader and for the profession. Shortly after this celebrated trial, Mr. Peix- otto resigned from the district attorney's office, and has since been fully occupied with his private practice, having a fine library and elegant offices in the Claus Sprcckels Build- ing. In 1899, when the terms of the county officers were shortened to one year, on ac- count of the adoption of a new city charter, Mr. Peixotto was attorney for the sheriff, Henry S. Martin. In 1896, and again in 1900, he was a delegate to the National Republican convention, and in the latter year he was sec- retary of the California delegation, and ex- tended his travels to Europe, visiting the Ex- position at Paris. Mr. Peixotto has always been an ardent Republican, and is always heard on the stump in the various campaigns. He is a prominent niinnber of the Bohemian and other clubs, and of several fraternal orders, and is well known and a favorite as a platform and after-dinner speaker. Mr. Peixotto is unmarried. EARL ROGERS. Anyone who has taken notice of the princi- pal- criminal cases in Los Angeles county dur- ing the last four years, but is at the same time not personally acquainted with Earl Rogers, will be surprised to learn that he is a man so young in years as here portrayed, for his name lias appeared in cnnncctiou with almost every important criminal case in tliiil county during this period. Such is the case ; Earl Rogers, thirty-two years of age, stands today easily in the first rank of his profession in the criminal courts of Southern California. His is a unique and interesting personality, and his methods -of handling a case differ widely from those used by the ordinary criminal lawyer. It might truly be said that at the present time he stands in a class alone, not only in his skill in this respect, but also in the number of big crim- 1068 History of the Bench and Bar of California. inal cases he has had and has fought to a suc- cessful termination. In the last three years Mr. Rogers has de fended more than one hundred felony cases in the courts of this State ; and from this large number there is only one of these de- fendants who has ever passed behind the doors' of the State prison ; a record that probably cannot be equaled in this or any other state. It will readily be presumed, however, and cor- rectly so, that he does not undertake the de- fense of every case that is presented to him. Unless he believes that there is, as he terms it, "a fighting chance to win," he invariably refuses to take the case, but once in, "he fights from the drop of the hat, and clever indeed must be the prosecuting attorney who gains even a temporary advantage. Every step is fought with unyielding determination, and with every weapon to be found in the arsenal of the criminal law. Earl Rogers is a born fighter, and was never known to quit. In addition to having the leading criminal business of Los Angeles county, he has a large amount of civil business, to which he attends with the same care and diligence that he gives to his criminal cases. One of the contributing causes to his great success is the fact that he never goes to trial without the most thorough preparation, both on the law and the facts. It is rarely ever that the opposing counsel is able to give him a surprise in any step in the case. Although born in the state of New York, Mr. Rogers has lived in California practi- cally all the time since lie was four years old. taking out the years when he was completing his cfassical education at Syracuse University, New York. At the age of twenty-four he l)egan the study of law in the office of the late Judge W. P. (Gardiner of Los Angeles, and was admitted to tlie l)ar of the Supreme Court in Oc'ober, 1894. He began the active practice of law for himself about one year later. For more than two years he worked and struggled as almost every young lawyer must, but at last his opportunity came, and when it came it found mm ready for it. That was the Black- man embezzlement case, the most noted of its kind in recent years. In this case Mr. Rogers rose almost in a single day from the plane of a comparatively unknown young lawyer to a commanding position at the California bar. a position he has ever since held. After the Blackman case, one criminal case after an- other was brought to him, until without any original intention or desire on his part, but really against his purpose, he has been al- most compelled to follow the criminal branch of the practice to a much greater extent than he has wished, and while he has not permitted this work to encroach upon his civil practice, it has been necessary for him to devote him- self more closely to his profession than most attorneys find agreeable. Among the many cases in which Mr. Rogers has been engaged may be especially mentioned the Alford, Crandall, Chaudfosse, Teresa Kerr, Mootry, Watson, Murray, Yglesias and Barboza cases, all murder cases of much pub- lic interest. Perhaps the most remarkable se- ries of cases ever tried in the courts of Los Angeles county were those known generally as the Watson cases, from the name of Walter Watson, the chief defendant, and the one whom the police authorities tried hardest to convict. The history of these cases is fresh in the public mind. A very carnival of crime seemed to prevail in Los Angeles city. In the short course of three months over forty hold- ups and three murders from attempted hold- ups had occurred. All the efforts of the po- lice to detect the perpetrators were fruitless. At last a young and industrious boilermaker named Walter Watson, and a number of his associates and friends were selected by the police as the parties upon whom the crimes wore to be fastened. Every artifice known to the police department was made use of to convict Watson. He was tried on three sep- arate charges, two for highway robbery and one for murder, and was triumphantly ac- quitted of all, in no case the jury being out more than ten minutes before returning a ver- dict of "not guilty." It may be said in pass- ing that the actual criminals have never been arrested. One of Mr. Rogers' strongest (|ualitics 's his readiness in the actual trial of a case. He is quick and alert, not a point either of weak- ness in the case of his opponent or of strength in his own escapes his immediate detection. Mr. Rogers is especially strong in cross-ex- amination, in which his methods diffcf mate- rially from those usuallj' employed. If it be true that "the law is a jealous mis- tress,' but showers her choicest treasures upon him who gives himself entirely to her, then the future certainly has much in store for Earl Rogers. James C. Ri'ves History of the Bench and Bar of California. 1071 JAMES C. RIVES. James C. Rives, district attorney -of Los Ar\- geles county,, was born January 4, 1864, near Atlanta, Georgia, while Grant and Sherman were planning the famous "March to the Sea." His parents remained at Atlanta during the seige and capture of the city. Shortly after the close of the Civil War his father started overland with his family for California, trav- eling in primitive style, with ox teams. They remained two years at Sulphur BlutT, Te.xas, and arrived in Los Angeles county, California, in i86g. They settled in what is known as the Los Nietos Valley, which lies to the east of Los Angeles city. The father, Burrell Ed- ward Rives, was one of the pioneer practi- tioners of medicine in Los Angeles county. For the past thirty-two years the present district attorney has resided continuously in that county. The life history of James C. Rives and his preparation for his profession savors of the old, rather than the new, sys- tem. He is distinctly a self-made man. He was forced to abandon his schooling and studies at the early age of fourteen years. He had never attended anything but a public school. He had no opportunity to acquire a college education. From his father's side he inherits the blood of one of Virginia's best families, and from his mother's side that of the family to which Alexander H. Stephens belonged. This was his only inheritance. After the death of his father, he being then fourteen years of age, he was compelled to abandon school, and turned his attention to the printer's trade as a means of livelihood for himself, his mother, and two younger children. With his wages he supported himself and the family. At the age of sixteen he started in the print- ing business on his own account, and before he had reached his majority he was the pub- lisher and proprietor of a weekly paper, at Downey, called the Dozviiey IVeclcly Rcviciv, which he continued to publish with profit. Dur- ing the years he was engaged in the printing business he took up the study of law, and in the year 1887 'le entered upon the practice. As an attorney he has achieved great success, and up to the present time he has practiced with good fortune, both from financial as well as other points of view. Like many other pro- fessional men, he takes great pride in fruit growing and farming, and is the possessor of a fine eighty-acre ranch located near the town of Downey, which he manages very profitably. He has always been an active, consistent and energetic member of the Republican party, and his efforts in its behalf have greatly aided in its many victorious campaigns in California. He is an able speaker, and has taken the stump in every political contest of the past fifteen years, as well as being a ceaseless worker along other lines in his party's behalf. In 1808 he was nominated by a vote of two to one over three strong competitors, for the office of district attorney of Los Angeles county. This nomination was followed by an animated cam- paign, and he was elected by one of the largest majorities ever given any candidate for office in his county. His tall and angular form, sharp features, keen perception of human nature, his knowl- edge of men and his humor, and his well- known history have won for him the title of "the Abraham Lincoln of California." In his excellent executive ability and his choice of deputies, in his scrupulous integrity and wise administration of the difficult duties of his office, he has still further justified the refer- ence to the honored statesman. Mr. Rives' management of the civil and criminal affairs of the largest county government in the State of California has given great satisfaction. No breath of scandal has tainted his administra- tion. He was married on September 4, 1889, to Miss Mary L. Crowell of Downey. The union has been blessed with four children, three boys and one girl. JOHN SATTERWHITE. John Satterwhite is one of the successful young lawyers of Los Angeles, California. He was born in San Bernardino county, California, July 18, 1868. His father, John W. Satter- white. was a prominent lawyer of San Ber- nardino, and was widely known in Southern California, and throughout the State. He was a member of the assembly from San Bernar- dino county at the sessions of 1865-66, and 1869-70. and was State senator from San Diego and San Bernardino counties during the years 1872 to 1880. John Satterwhite went to the public schools in San Bernardino, and afterwards to the Oak- land High School, at Oakland, Alameda county, California, where he graduated. He then went to Hastings Law College for three years, and graduated from that institution in June, 1891. After he graduated he returned to San Bernardino, where he commenced the practice of law in co-partnership with Colonel A. B. Paris. After two years he moved to Los Angeles, and has practiced law at that place ever since. Since locating in Los Angeles Mr. Satter- white has made great progress in his profes- sion. He is regarded by the bench and bar of that city as one of the most careful and safe attorneys and advisers. He has conducted some of the most important litigation in the State, and has been unusually successful in all his cases. He has never sought office, though he takes an interest in politics, and has at- tended, as a delegate, many of the conventions of his party. He is popular, and possesses tlie confidence of the general public, and is especially esteemed by his extensive clientage. Mr. Satterwhite is a close reasoner. and pos- sesses a strong, well-trained, judicial mind, and though yet a young man, many prominent business men of Los Angeles show their con- fidence in his judgment by consulling Iiim. lie ni;irrie University, with the degree of A. B. He studied law in the office of Fox & Kellogg, in San Francisco, and was admitted to the bar by the State Supreme Court in July, 1892. He has practiced in San Francisco ever since. His only partnership was in 1893-94. with Fred- eric R. King, son of Thomas Starr King. Mr. Shaw had his first case in the Supreme Court of the United States in August, 1895, when he was twenty-eight years old. FREDERIC \V. STEARNS. Frederic W. Stearns was born in Chicago. Illinois, December 6. 1867. He was graduated from the University of Wisconsin in the mod- ern classical course in 1889, securing the B. L. degree. He was graduated from the law de- partment of the same university in 1891, tak- ing the full course, and also working in the office of one of the leading lawyers of the State while attending the law school. He lo- cated in San Diego, California, in the spring of 1892. In 1894 he entered into partnership with James E. Wadham. under the firm name of Wadham & Stearns. This partnership con- tinued until 1898. In 1899 the firm of Stearns & Sweet, con- sisting of Frederic W. Stearns and A. H. Sweet was established. It has been connected with most of the irrigation district litigation in San Diego county, representing the bond- holders of the Escondido. Linda Vista and Jamacha irrigation districts. The firm rep- resented such bondholders in the case of the Samuel M. Shortridge History of the Bench and Bar of California. 1079 People vs. Linda Vista Irrigation District, one of the most important irrigation district cases, being an action of quo warranto brought by the people of the State of California to dis- solve the district, and involving the validity and effect of the confirmation proceedings had under the act of the legislature passed in 1889. The case was decided both by the lower court and by the Supreme Court in favor of the dis- trict. The firm has made a specialty of bond and corporation law. SAMUEL M. SHORTRIDGE. Mr. Shortridge has been at the bar only fifteen years, but it seems much longer. He became prominent very soon after his ad- mission, and has been familiar to the people of the State for a greater period as an elo- quent public speaker. He was born in Mt. Pleasant, Henry county, Iowa, on the 3rd of August, 1861. His re- mote ancestors lived in Scotland and the north of Ireland. Some four generations back, the family was established in Kentucky, where it produced several great lawyers and preach- ers. Mr. Shortridge's father, Elias W. Short- ridge, was born in Indiana, his mother also. The father prepared himself for the bar in company with Oliver P. Morton, but, without entering upon the profession, turned to the pulpit, and became a clergyman of the "Chris- tian denomination, in which President Gar- field was prominent. He was a man of deep and cultured mind. In Kentucky, the ShortridgeS, like the fam- ily of Abraham Lincoln, intermarried with the family of Daniel Boone. The branch that went south adorned the history of Alabama with distinguished names. As late as the year 1855 the strong mentality of the race was ex- emplified in Hon. George D. Shortridge, a man of great learning, and one of the Circuit Judges of that State. But the most command- ing name in this branch of the family was that of Eli Shortridge, father of George D. Eli Shortridge was also a Circuit Judge in Alabama, but had won an enviable reputation as a lawyer and orator in Kentucky, where he was born. In a volume on the noted men of Alabama, written by Hon. William Garrett, who had been secretary of state, is a very entertaining notice of Eli Shortridge. Mr. Garrett says : "His addresses to the jury, while at the l)ar as an advocate, were models of beauty and elo- quence, so pronounced by comjietent men who have heard him. He had a peculiar softness and cunhony in his voice which exerted a charm on the listeners. Nothing could be more captivatinsr. It was like the tones of a parlor organ, rich in melod}' and gushing out in a perpetual concord of sweet snnnds. "His style was not less beautiful in i)nril\ of diction, and it seemed as if Ik- alw.ivs lu'Id a check on himself, as if to curb ;i vivid ini agination. There were occasions. liDwcvcr. when he soared beyond his restraint ihdugli never to the height of his capacity." Mr. Shortridge's father removed witli lii^ whole family to Oregon in the year 1874. and came with them to California in 1876, set- tling at San Jose. At that place Samuel grad- uated from the High School in 1879, deliver- ing, at the graduation exercises, the valedic- torv address. Subsequently he received a first-grade State certificate, and went to Napa county, where he taught school for four years, a'c ditferent places. During this period of Mr. Shortridge's ca- reei his great mental activity was evidenced by lectures to his schools on instructive themes, and by public addresses and contribu- tions to the press on questions of popular con- cern. His experience as a teacher and principal in the public schools confirmed the high esti- mate he had been taught to place upon our common school system. After coming to this State and before go- ing to school at San Jose, young Shortridge and his brother, Charles M., worked for some time as conmion miners, in the mines of Ne- vada county. Samuel had the law for his goal, and he kept his eyes fixed there through a boyhood and early manhood of toil. His opportunity came in the year 1883. He was twenty-two. Having read law books with in- creasing interest in rare moments of leisure, he resigned his position as principal of the public schools of St. Helena, Napa county, and moving to San Francisco, now began the study with system and devotion. He was admitted to practice by the Supreme Court in the month of May, 1885. It was in the presidential campaign of 1884 that he became known to the people of the whole State as an orator, while canvassing in the support of James G. Blaine. The comparatively short period that has elapsed since Mr. Shortridge came to the bar, has been long enough to realize to him his boyhood hopes. He has displayed high aliility in both civil and criminal departments of the practice. His commanding form is sustained l)y robust physical strength, and he is capable of great endurance, both of mind and body. Flis ambition is strong, his aims are high. He has an enthusiastic love for the profession. And his zeal is not that ardor of mind that burns or cools with circumstances, but has its springs in a healthy intelligence. He has the intellectual ((ualities that are masters of victory. As a jmblic speaker. Mr. Shortridge is earn- est, I)nt not excitable, fervid but not fiery. His expression is careful, his gesture graceful, with a connnanding sweep of arm. His voice is strong, full and imfailing. of pleasing qual- ity, and thunders or softens at his will. ITe has been a close student of rhetoric. but has soiight to learn oratory and acqtn're the art of eloc|uencc from the great orig- inals — the ]ierennial fountains — Demosthenes, ("icero Burke. Chatham. Webster, and Clay, regarding them as the masters, and an inti- ni,!te ;'C(|uaintance with them as essential to ,1 kindred excellence. Since coming to the bar Mr. Shortridge has been orator of the day on many historical cccasions. His Memorial Day orations and Fom-tli of Tulv addresses. deli\-ered in the 1080 History of tJie Bench and Bar of California. principal cities of California, have been widely circulated, and have earned for him a reputation for scholarship and eloquence which may ripen into fame. Born and reared a Republican, he has ren- dered yeoman service to his party, canvassing the State in its interest in nine successive campaigns. He was one of the Republican presidential electors in 1888, and again in 1900. In the latter campaign he received the largest vote on his ticket, and the largest ever cast for a candidate in California, and was chosen by his fellow-electors to carry the vote of his State to Washington. The address de- livered by Mr. Shortridge before the Repub- lican State convention, at Santa Cruz, in September, 1900, was issued as a campaign document and won great praise. Having studied Chinese history, the Chinese race and characteristics, he early opposed Chinese immigration on the broad and justi- fiable ground of self-preservation, the first law of nature, applicable alike to nations and to irdividuals. He elaborated his views in a speech at Metropolitan Temple, San Francisco, in 1&87, when he used these words: "A total abrogation of the Chinese treaty and a closing of our doors to further coming of this objectionable race are the only effective n)elhods of grappling with this great and dan- geious evil. The State, as such, is powerless; the nation must speak and act. The warfare of Californians against the Chinese is a pa- triotic and righteous warfare, justified by the principle of self-protection. It is even not un- christian hatred or petty spite which prompts them to act, but an honest conviction that seeks only to protect the interests of Amer- ican labor. "We stand here today as the Athenian stood, threatened by the advancing hosts of Syria : as the Roman stood, menaced by Goth and Vandal of the north. Around and about us are the monuments of our Christian and en- lightened civilization, the magnificent results of a national progress unparalleled in the his- tory of man, the precious and inestimable blessing? of liberty achieved by heroic sacri- fice and thus far treasured and preserved by lofty I'nd self-denying patriotism. Shall these blessing? be jeopardized and lost forever? Shall these splendid results be sacrificed, these monuments of our liberty, our industry, our progress be ruthlessly overturned? Shall these shrines be desecrated, these oracles of freedom hushed, these free laborers reduced to bf^ggary"' Tt were better that the waves of the "ocean overwhelm and swallow us up. it were better that Heaven's lightning smite and wither us than that Chinese slavery should pollute the air of American freedom." JAMES ROBERT TAPSCOTT. Mr. Tapscott was born on September 9. 1865. near Staunton. Augusta county. State of Vir- ginia. His narents were James F. Tapscott and Isabella J. Tapscott. They were both cul- tivated and refined people, whose sterling traits of character and moral worth were rec- ognized by all who knew them. Their chief pride in life was to train and educate their children to be genuine factors for good. They spared no pains nor trouble to impress upon them the importance of observing the Golden Rule. They were both conscientious Chris- tians — practicing, rather than preaching, the doctrines of their faith. The devoted mother (there have been many such in this dear land) was "devotion" itself to her children, and they in turn loved her with an affection too genuine to be hidden ; but while this was true, the children were always taught to "respect" her as well as their father. General Robert D. Lilley. who for many years after the Civil War was connected with Washington and Lee University, was the brother of Mr. fapscott's mother, and he was one of the most lovable of men. On one oc- casion General R. E. Lee expressed in writ- ing his estimate of General Lilley's character, and he said : "I take pleasure in commending him to all as a Christian gentleman and brave soldier. He enjoys the confidence of those who have known him from boyhood and has the ad- miration of all who are acquainted with his character and conduct in his mature years." Mr. Tapscott received his education in the Valley of Virginia, where he was raised, and where educational facilities were at that time, and are now, among the very best in the coun- try. When he finished school, although pleasantly situated, and most devoted to home and home influences, he felt that present pleasures must not interfere with his future welfare and prosperity, and when an opportunity was pre- sented to him to try his fortune amid new scenes, he bid an affectionate farewell to mother and father, and his "Uncle Robert" (who accompanied him to the train") and his boyhood friends, and at the age of eighteen years, crossed the continent and came direct to the Golden Sate. The first winter after he arrived here he spent with relatives and History of the Bench and Bar of California. 1081 friends near Colusa, in the Sacramento Val- ley, and the following spring he went to Red Bliifif where he at once entered the law office of Mesrs. Chipman and Garter (Gen. N. P. Chipman and Col. Chas. A. Garter) as a law student, and with them pursued his law studies until he was admitted to practice law. During the month of May, i88g, he accepted an offer to enter into a law partnership with Hon. H. B. Gillis, at Yreka, Siskiyou county, California, and" immediately thereafter re- moved to that place and they established the law firm of "Gillis & Tapscott," and the firm has continued in existence up to the present time — over eleven years. During this period the i"irm has maintained its place among the leading law firms in the northern part of Cali- fonua. and has enjoyed a very extensive and successful practice. Throughout this entire time the courts of that section of the State have been kept busy settling the various com- plications which constantly arise wherever val- uable mining properties are being discovered and developed, and this litigation has not been confined to the local courts, but the most im- portant part of it has invariably found its way into the Supreme Court, and not infrequently into the United States Federal Courts, and the Supreme Court reports afford abundant evi- dence that no law firm in that part of the State has taken a more a(?tive part in this litigation, or been more successful therein. In order to keep abreast of the times the firm has acquired and kept up one of the must valuable law libraries to be found north of Sacramento, and their office facilities are in keeping with their practice. In politics Mr. Tapscott has never found any satisfactory reason for changing those Jeffersonian principles which he inherited from a long line of Old Virginia ancestors. Tl'ough a sincere, an avowed and active Democrat and for several years secretary of the Democratic Comity Central Committee of Siskiyou county, and once elected chairman of tliat committee, he has never allowed him- self to be persuaded into aspiring for any office — though often advised by well-meaning friends to do so. He has usually felt that "office" was a luxury which but few wcll-eslal)- lished yoimg business men could afford. He has ])een more or less prominent in tiic Masonic fraternity for the past ten years, and values most highly the honors which have been bestowed upon him in that connection. Mr. Tanscott was most happily married on October i6th, 1889, to Miss Katie Merrill. n[ Red iiluff. who is a native daughter of Cali- fornia. Tliey have two very bright and en- tertaining children to bring sunshine to their delightful mountain home — Robert Afcrrill Tapscott, aged seven years, and Katliarine Isa- bel 1 apscott, aged five years. Of all the treas- ures this rich mountainous gold-bearing sec- tion possesses, none arc so valualile as these "Iiome treasures." and it would be hard to find anywhere a happier bnnie or one lliat enjoys in greater measm-i.' tlic good will of the community. ARTHUR J. THATCHER. Arthur J. Thatcher was born at Placerville, m this State, in 1864. In 1869 his parents re- moved to Mendocino county, where they have ever since resided. Mr. Thatcher entered the State University at Berkeley, and was grad- uated therefrom in the class of 1887. After graduation he went to the Hawaiian Islands, as a teacher in the government schools, and while there married Miss Fannie Low. Re- turning to Mendocino county, he became ed- itor and part owner of the Ukiah Republican- Press. Not finding newspaper work congenial, he sold out his interest in the Press and ac- cepted the principalship of the Placerville schools, and later the same position in the Red- wood City schools. Having resolved to enter the legal profession, he devoted his spare time while teaching, to the study of law, and was admitted to practice by th'c Supreme Court. After admission to the bar, he opened an office at Redwood City. In iSgC) he returned to Mendocino county, locating at Ukiah. wiiere he formed a co-partnership with Hon. John W. Johnston, now of Sacramento. This continued until Mr. Johnston's removal from the county, two years later. Mr. Thatcher has always taken an active interest in politics, on liie Republican side, being the candidate of that I)arty for district attorney of Mendocino county, in 1898, and chairman of the county central conunittee in lyoo. He is one of the best lawyers in Northern California, and one of the- most respected citizens of Lnon the site of the building now known as Music Hall, and cost about $100,000. One of the features of the hotel was a very ample fire-place, which its sitting-room contained. How many bright spirits met and sparkled in front of that old fire-place with its blazing back log. How many of our pioneers read their golden futures in its ruddy embers. How many dreams there cherished were realized, and how many like its own flames faded into ashes, no one can ever tell. Only a few of its scintillating sparks have lingered in the memories of men. The following is one which I have rescued from forgetfulness. and since it concerns our first District Judge, I tell it here. Judge Watson dearly loved a joke — on some one else — and even (a rare quality) appreciated a joke upon himself. He was full of wit and humor as he was of law, and both were of that free and easy kind peculiar to the times. The Judge wore a beaver hat which cost him $16, and was very proud of his tile. Among his Mansion House acquaintances were George McDougall and Ben Lippincott. both as full of deviltry as an eij;s!; is of meat. Lippincott was a crack shot and often went hunting. One day these worthies, while off gunning, set a trap for History of the Bench and Bar of California. 1121 Judg-e Watson. They loaded Lippincott's gun with a double charge, putting each in separately. Returning to the Mansion House, Lippincott placed his gun behind the bar and went away. Presently Judge Watson came in, and McDougall engaged him in conversation upon Lippincott's skill as a wing shot. "Judge," said McDougall, "Lippincott thinks he's a devil of a fine shot; now I propose that you and I put up a job on him. Let's withdraw the charge from his gun, and when he comes in you bet him a box of champagne that he can't hit your hat thrown up in the air." Judge Watson thought that a capital joke. He smiled all over while the charge (one charge) was being drawn. His face shone like the gilded ball upon the Liberty pole. Presently Lippincott came in, and to him the Judge said : "Ben, you are a pretty good shot on the wing, in your own mind, but ril bet you a box of champagne you can't take your gun there and hit my hat as I throw it up in the air." "Fll take that bet," said Lippincott, and straightway got his gun. The party went out in the street ; the usual crowd collected ; the word was given ; up went Judge Watson's hat in the air ; bang went Lippincott's gun, and the hat, oh! where was it? Upon the swarthy face of Judge Watson, so lately all ecstacy, amazement sat. He saw the sell and joined in the general shout at his own expense, and then the boys went in and sampled the Judge's champagne. Among the lawyers who practiced at the bar of our District Court in the early "fifties" was W^illiam B. Almond, who had been Judge of the Court of First Instance in San Francisco before the organization of the State. Judge Almond was a genial gentleman of the old school, and who loved his tipple and always kept a demijohn of "cognac" in his chambers adjoining the court. When the judicial duties of the day were over, it was the Judge's habit to go to his chambers and enjoy a glass of cognac. The Court of First Instance was a very busy tribunal during Judge Almond's term, owing to the many cases which arose in '49 over the possession of lots in the growing city. In consequence Judge Almond had a great many papers in the form of orders and decrees to sign, and in the hurry his signature often became a very hasty and formal act. Among the attorneys who practiced in Judge Almond's court was Gregory Yale, who loved joking and brandy with equal fervor. On one of Judge Almond's lousiest days, Gregory Yale gravely presented an order for the Judge to sign. The signa- ture was 'attached and Yale went away. Presently the court adjourned, and Judge Almond went to his chambers for his wonted glass. The demijohn was gone, and in high dudgeon Judge Almond called the bailifif of the court and asked what had become of it. The bailiff answered that he had taken it over to the office of Gregory Yale. "Who ordered you to do that ?" said the Judge, in a rage. "Your Honor did," responded the bailiff, and straightway drew from his pocket the following order duly signed by the Judge: ."Good cause appearing therefor, it is ordered that the bailifY of this court do forthwith convey to the office of Gregory Yale. Esq.. that certain demijohn of cognac, now lying and being in and upon those certain premises, known and more particularly described as the Chambers of the Honorable Judge of this court." It was the order he had signed that morning. Judge Almond never saw nor tasted his cognac again, but the flavor of this joke remained with him for inanv a dav. RUI'US A. LOCKWOOD. Throughout all my gleanings of fact and fancy there has been constantly pre- sented to me the outlines of a gigantic figure ; the reminiscences of a character vast and strange ; the recollections of a genius more powerful, more original, 1122 History of the Bench and Bar of California. and yet more eccentric than any other which ever Hashed its hg-ht across the history of CaUfornia ; the memories of a man and of a lawyer whose living and whose dying verified the tru"th, "Great minds to madness closely are allied." I refer to Rufus A. Lockwood. In the early part of the year 1850 an important case came on for trial in the Court of First Instance at San Jose. It was the case of Hepburne vs. Sunol et al.. involving the title and right of possession of a portion of the Los Coches Rancho. C. T. Ryland and John II. Aloore represented the plaintiff and James M. Jones appeared for the defendants. The plaintiff's attorneys were then young men, recently from the East and not yet versed in the Spanish language or law. The attorney for the defendant, on the contrary, was a lawyer of great experience in the practice of the civil (or Spanish) law and a linguist perfectly familiar with the Spanish language. He was, moreover, one of the deepest students and most brilliant men of the time, and in the case at issue had the young attorneys for the plaintiff' at a disadvantage. One day while some phase of the case was up before Judge Kincaid for argument. E. L. Beard, of the San Jose Mission, hap- pened into the court-room and soon saw that M6ore and Ryland were getting worsted in their case by reason of Jones' superior knowledge of the Spanish law. He went over to iSIoore and suggested that he ought to have the assistance of a lawyer who could read Spanish and cope with Jones in the application of the law. "Where can we find such a man?" asked Mr. Moore. "I have the very man you need at the Mission," answered Heard, "and I'll send him down to assist you. His name is Lockwood." When the day for the trial of the case came on there walked into Judge Kincaid's court-room in the old Juzgado a large, awkward and roughly dressed man and took his seat with the plaintiff's attor- neys. It was Rufus A. Lockwood. He made no immediate manifestation of power, but listened closely while the pleadings were read, the jury impaneled, and the trial of the cause begun. He saw that the case involved one of those clashings between the American and Mexican people so common in those early times. He noticed that the jury was a "Missouri" jury, whose sympathies would naturally be with the plaintiff. He quietly waited for his opportunity to cope with the only dangerous element in the case, viz., the learning and ability of James M. Tones, the defendant's attorney. Presently a question of law arose and Jones began to argue it with the aid of the Spanish statutes, which he read and then translated to the court. He made an argument clean cut and strong, as was his wont, and sat down confidently. Then Lockwood arose, and with one sweep of resistless logic destroyed the whole fabric of Jones' speech. He turned to the very statute from which Jones had quoted, read it with the facility of a master of the Spanish tongue, translated it luminously, expounded it learnedly, and from it showed to court and jury that the law was with the plaintiff in the case. The whole court-room gaped with astonishment, while the plaintiff and his attorneys hugged themselves with delight at the possession of such an ally. Every one felt and saw that they were in the presence of a master mind. The expected victory of Jones was turned into a rout, which during the remainder of the trial he could not check wath all his talent and industry. He worked his night out to win his case, but in vain. "Tliis man Lockwood is killing me," said Jones to Moore as the case drew to its close. The last day of the trial was February 22, 1850, when Lockwood's speech to the jury was delivered. Brief snatches of that splendid burst of oratory still linger in the memories of our pioneers who were privileged to hear it. They tell of Lockwood's description of the Battle of Buena Vista, which occurred on February 22, 1846, and of which this day was the anni- History of the Bench and Bar of California. 1123 versary. He pictured General Taylor's victory over the "greasers" to that jury of Missourians and called on them to celebrate it today with a victory for the American plaintiff and against the "greaser" defendant in the case. Such an appeal was irresistible, and Lockwood not only won his case, but established him- self at once as the greatest lawyer who had ever shaken the walls of the Juzgado with the thunders of his eloquence. The next great case in which Lockwood was engaged and tried in San Jose was the case of Aletcalf vs. Argenti. This suit arose in this wise : .\rgenti was a banker in San Francisco, and was prominent among the members of the first vigilance committee. Metcalf was an arrival from Australia, who for some rea- son fell under suspicion and was roughly treated by the Vigilantes. He brought suit against the leading men composing that body and employed Lockwood and Edmund Randolph as his attorneys. The case was tried first in San Francisco and resulted in a mistrial by reason of the strong prejudice in favor of the Vigi- lance Committee in that city. It was then transferred to Santa Clara county for a second trial and came on in 1852. Lockwood was very much opposed to the methods of the Vigilance Committee and went into this case with more than usual zeal and vigor. Those who heard his speech to the jury in that case say that it surpassed all of the speeches they have ever heard before or since. It was pub- lished in pamphlet form, and may still be found occasionally in the libraries of the lawyers of that time. The al)ilities which Lockwood displayed in the trial of these great cases gave him a State reputation as being the greatest law^yer on the Coast. Doubtless he was, and would have died in the secure possession of that reputation, but for that strain approaching insanity in his nature, which led him to such extremes in con- duct and experience. Many stories are told of his skill in the court-room, where he was the wonder and admiration of the bar. In defeat, especially, he is said to have been like a lion at bay. and on such occasions some one was likely to get hurt by his fierce intellectual assaults. An instance of his crushing manner in dealing with lying witnesses is related. He had cross-examined the witness at great length and finally dismissed him. Just as the witness was about to leave the stand Lockwood detained him with "One question more" ; wrote a moment and then looked up and transfixed him with the question. "Would you l)elieve yourself under oath?" It is indeed remarkable how deep an impression Rufus A. Lockwood made upon the minds and memories of the pioneers during the short six years he spent at the California l)ar. In fact, every one who ever came in contact with him has imprinted on his mind a vivid ])icture of the man ;^of his facial expression, of his physical movements and of his original style, and a strong remembrance of his powerful voice, which, to use the language of Judge Moore, "was like the growl of a grizzly bear." Walking down the street the other day. I met J. H. Flickin- ger, who told me that of all the pioneers of California his recollection of Lockwood was perhaps the earliest and most pleasing. He was a fellow-passenger with Lockwood when he first came to California around the Horn in 1849. For the first month out from New York Lockwood never left his cabin, but after that he began to mingle with the rest. Before the voyage was ended the passengers became aware of the fact that they had on board the most singular, brilliant and versatile genius they had ever known. The range of his reading and of his experience ; his knowledge of human character ; his command of language, of lit- erature, and the infinite variety of his moods were a revelation to his shipmates. After the voyage was ended and during the whole of Lockwood's career in Cali- 1124 History of the Bench and Bar of California. fornia he retained his friendship for Mr. FHckini^er, and whenever he was in San Jose was pleased to sjiend a while with his "shi])niate"' and live over a^^ain their mutual past. Elias L. Heard, of San Jose Mission, was a Ion;.;- and stroui]^ friend of Lock- wood. Beard was an a<^i^ressive character and was involved in lawsuits of various kinds in all of which he had Lockwood for his attorney. One time a fellow whose name has escaped immortality, sued Beard for slander and employed E. K. Sanford as his attorney. The case came on for trial before Judge Watson, with Lockwood for the defense. Sanford made his opening- speech to the jury, and it was very flowery. He quoted elaborately from the poets as to the value of a man's character and the outrage of slanderous assaults upon it. "Who steals my purse steals trash, etc.," came in the climax, and Sanford sat down well pleased at his burst of oratory. Then Lockwood arose, and, addressing the jury, also took the subject of character for his theme. He dwelt upon the value of character more eloquently than his opponent, quoted again all of the poetic pas- sages which Sanford had done, and adding to their number, built up his speech to the verv summit of a splendid consummation and then capped it all with this anti-climax, wdiich won his case. "Gentlemen of the jury, remembering all that I have said to you of the value of human character, I solemnly declare that if you will give a dow"n-East Yankee a jack-knife and a cedar stick he'll whittle out a better character in five minutes than has ever been established yet in any court of justice." Rufus A. Lockwood was once the defendant in an action brought by one named Harlan in our District Court, and involving the title to a piece of land adja- cent to San Jose. Lockwood was his own lawyer and did not have a fool for a client, in spite of the old legal saw^ The case turned upon the validity of a certain deed which made its appearance at the trial and was offered in evidence by the plaintiff. It a])peared to be entirely in the handwriting of Lockwood and to convey the premises in c|uestion. Tf valid and so found by the court. Lock- wood would have stood besmirched with having acted dishonorably toward Har- lan. The case was hotly contested on both sides, and Lockwood's blood was up. When the deed was produced and offered in evidence Lockwood looked it over carefully and then arose in court, and in a voice of thunder declared it a forgery. William T. Wallace was attorney for the plaintifif, and seeing Elias L. Beard in the court-room, called him suddenly to the witness-stand to testify as to Lock- wood's signature. P>eard didn't want to testify against his friend, but after care- fully examining the instrument he was obliged to swear that he believed it to be in Lockwood's handwriting. Lockwood cross-examined him as follows: "Elias, you think that T wrote that deed, do you?" "Yes, Rufus," reluctantly stammered Teard, "I think that's your handwriting." "Now, Elias." said Lockwood ("who prided himself on his spelling), "if I was going to write a deed, do you think that I would spell 'indenture' with tw^o tt's?" ]^)eard hastily scanned the deed, and there, sure enough, was 'indenture' spelled with two tt's. "Xo, Rufus," said Beard, exultantly. "I don't believe you would, and I think this deed is a forgery." And so it proved to be, for after the case was ended it was discovered that a fellow who was staying at Harlan's house, and who was an expert penman and given to imitating handwriting, had w-ritten the deed. The story of Lockwood's death on the ill-fated Central America recalls the maimer of dying of another member of our early bar. of whom I have written — Freeman McKinney. When Henry A. Crabbe conceived his fatal filibustering expedition into Sonora in 1857 he attracted a number of brilliant but adventurous Historx of the Bench and Bar of California. 1225 characters to his company, and among these was Freeman McKinney. Doubtless the expedition was entered upon in good faith by many of Crabbe's followers, who were led to believe that an actual revolution was in progress in Sonora. and that a display of aid from the Americans would win the State for the United States as Texas and California had been won. Induced by this error they went to Sonora and there were overpowered by a superior force, and the survivors condemned to be shot. When Freeman McKinney was led out to execution and the file of soldiers stood ready to fire, McKinney saw a Mexican in the crowd whom he had known in California. Beckonng him to his side he inquired if he expected to return to San Jose. The Mexican answered "Yes." when McKinney drew himself up to his full height (a little over four feet) and said: "When you return to California tell the people of San Jose that Freeman McKinney died game !" The other day in San Francisco William Mathews drew me aside from the rushing human tide on ^Montgomery street to tell me some stories in his elegant way. of our early bar. The tale I have just related of "Free" McKinney's fate was one of them. Here is another of Judge Redman, which is worth repeating : One day in Judge Redman's court. Colonel Stafiford ( "the Lord of Hardscrab- ble") arose to move the admission of a new member of the bar. It was Colonel A. C. Yates, who had recently arrived from the state of Texas, in the military history of which state he had distinguished himself and won the commission of colonel. The genial Stafiford enlarged u])on the attributes of his friend. Colonel Yates, and eloquently depicted his career. He then fumbled among a package of papers which Yates had given him for the latter's license to practice as an attorney of Texas (upon which his motion was based) and finally, as he thought, found it and gracefully handed it to the court. Judge Redman took the paper and opening it out read it over with growing though internal mirth. At length he looked up and with a smile said, "Colonel Stafiford, you have made a mis- deal, sir. This document purports to be a colonel's commission from the Republic of Texas to Mr. Yates. Deal again. Colonel Stafiford, deal again before this court will be justified in granting your motion," and the Lord of Hardscrabble in mucli conftision "dealt again." Still another story has been told of Judge Redman. One day as he sat in his court-room with his clerk, H. C. Melone, writing below him. J. .\lexander Yoell entered. Mis business was with Melone. who was a large man of strong likes and dislikes, and of quick temper — a ty])ical border character. r>etween himself and Mr. Yoell a misunderstanding occurred, which on Melone's part ripened at once into a row. and he i)itched into Yoell. The judge sat (|uietly viewing and enjoying the tussle and making no eflfort to stop it until some gentleman entered and separated the combatants. Then turning to the Judge, with some indigna- tion, he said: "^'ou're a pretty specimen of a Judge to sit there and permit a personal encounter to go on in your court." "My friend." said Judge Redman, calmly, "what could I do? The legislature in its wisdom has not seen fit to pro- vide my court with a bailifif, and hence I could not order them into custody. The clerk, as you see. was engaged, and I could not have entered a fine; and if T had descended from the bench to interfere 1 would cease to l)r the Judge and would be no better than any other d d fool in the court-room." 1 am told that when this yarn was told to Stephen J. Field of the Supreme Court of the United States, that eminent jurist laughingly declared that Judge Redman's position was cor- rect. It mav be gathered from some of these sketches that the lawvers of our earlv 1126 Hisiory of the Bench and Bar of California. (lays did not always con their law books, either when out of court in the day- time, or between days when they burned the midnii^ht oil. Nearly all of the pioneers of the bar played cards, and often enjoyed the game greater when the pot was a big one and the bets were high. Here is an incident of one of those heavy earthquakes which visited the Coast and struck terror to the hearts of its denizens during the fifties, and before the average man grew accustomed to "temblors." One day William T. Wallace, John H. Moore, J. A. Moultrie and a layman or two were having a quiet game in one of the adobes near the Court- House. The pot was large, the bets were made and ended, and a show-down was about to be made when the earthquake came. Everybody made for the street as earthquake-shaken people only can. After the danger was over, the players remembered their game and returned to the adobe. The "pot" was still there, but every player, save one, had lost his hand somewhere in the panic. That one was "Bill" Wallace, who, with a presence of mind which was characteristic, produced the cards he had clung to throughout the earthquake, and claimed the pot. The hand was a low one, but he dared the rest to show a higher, and when none of them could, Wallace raked the pot. When Judge Redman resigned his office of County Judge in 1852, C. E. Allen was appointed to serve out his unexpired term, which he did with great credit to himself and to the court. After him came R. B. Buckner, who was elected in 1853. We all remember Judge Buckner and his quaint ways of dispensing justice from his bench as justice of the peace in modern days. On the old-time county bench he was much the same in method, as the following incident will illustrate : One narty had leased a piece of land to another for a term, w^hich ended, he re- moved from the land leaving behind him a quantity of compost, which later he tried to remove, but was prevented by the owner of the land. The tenant brought a replevin suit against his former landlord for possession of the compost, in Judge Huckner's court. The case dragged on while the lawyers disputed in briefs and arguments about the lav." of fixtures, and the principles governing the change of personal into real property. At last the actual trial came on, when the defend- ant proved that since the case was commenced his chickens had so scattered the compost that it had lost its identity and become mingled with the soil of his land. Judge Buckner chewed his invariable "quid" calmly until the time for pronouncing judgment came. He then rendered his decision as follows: "This case has been argued learnedly by the lawyers on both sides, wdio have drawn fine distinc- tions between personal and real property. The court does not, however, deem it necessary to draw any such nice distinctions, for the reason that the evidence shows that while the action has been pending the defendant's chickens have scat- tered the property in controversy beyond identification, and have thereby literally scratched the plaintiff's case out of court." THE Or.D THIRD DISTRICT COURT. The first legislature of California, which met in the fall of 1849 in San Jose, provided the State with a judicial system, consisting of a Supreme Court and nine District Courts, which met in as many judicial districts throughout the State. The counties of Santa Clara, Contra Costa, Santa Cruz and Monterey constituted the Third Judicial District under this statute, and John H. Watson was appointed its Judge. Judge Watson was a man of considerable ability, but of not a very vast fund of legal knowledge. He it was who delivered the famous and humor- ous charge to the jury at Monterey in the case of Dean vs. McKinley, and which has heretofore been recorded. One day while the Judge was traveling from San History of the Bench and Bar of California. 1127 Jose to Santa Cruz (to hold cotirt there) in company with several members of the bar of his district, amoni^' whom was R. F. Peckham, the latter beg"an to poke fun at Judge Watson for his charge to the jury in the McKinley case. "Now, Peck- ham," said the Judge, "don't you think I do about as well as anyone else would who don't know any more law than I do?" "Before I can answer that question, Judge," answered Peckham, "I would have to ascertain just how much law you do know." ■"Well, to tell you the truth, Peckham," said the Judge, "I don't know any, for I never read a law book in my life." "Well," laughed Peckham, "I must say that for a Judge who never read a law book you do remarkably well, but how do you manage to get along with your cases?" "I'll tell you the secret, Peckham," said Judge \\^atson ; "I make use of two presumptions in the trial of my. cases. When I have heard the evidence I first presume what the law ought to be to do justice between the parties, and after I have settled that presumption I next pre- sume that the law is "what it ought to be, and give judgment accordingly." Here is another instance of Judge Watson's aiTection for presumptions. One day James AI. Jones was arguing a case before Watson, which involved some prop- osition of the old Spanish law. Watson didn't understand Spanish, and hence Jones had to both read and translate the law which he claimed to sustain his case. Judge Watson didn't like the law which Jones was evolving from the Spanish text, and after listening awhile, said: "Mr. Jones, the court has no doubt that you are correctly translating that statute, and that it at one time was the Spanish law; but that statute is so absurd and imjust as applied to the facts of this case that the court is going to presume that the law you are citing has been repealed." Of course, such presumption was indisputable, and Jones lost his case. This method of administering presumptive law was well enough in an era when law libraries were few and far between and when lawyers were even less learned in the law than was the court. But the great tide of population into California during the early fifties brought with it as good lawyers as the older states could produce, and their law books soon followed them. The result was that the Supreme Court found very frequent cause for reversal of the Judges of the District Court. In this connection a good story may be told on the Fourth District Court, which was one of those most frequently reversed. One day Delos Lake, Esq., arose in the Supreme Court to argue an appeal. "May it please the Court," he said, "this is an action in which we have appealed from a judgment of the Fourth District Court ; but your Honors, zve have other grounds of error." The term of Judge Watson's service on the District Bench was ended in 1851 by his sudden resignation and return to the practice of the law. Judge Moore has supplied me with the reason for his resignation. It seems that during 185 1 there were a great many criminal trialls in both the District and County courts, principally for grand larceny. John H. Moore was then district attorney, and being a young, vigorous and popular attorney, he gained many convictions. Judge Watson saw this criminal business growing in his court, and saw also Moore's success. He had some abilities as an orator, had the Judge, and he conceived the idea that he could make a fortune defending criminals. So one day he resigned and at once o])cncd a law office. Meeting Moore soon afterward he told him of his plans and rather boastingly informed the young district attorney that the day of his success as a prosecutor was past. Moore advised him not to be too confident until he had won a case or two. The very next case which came up for trial was that of one Basquiz for horse stealing. The penalty for this offense was at that 1128 History of the Bciicli and Bar of California. time capital unless the jury fixed a lesser i)unishnient, but District Attorney Moore, not believino^ in the harsh law, had never yet asked a jury to permit the extreme penalty. When Judj^e Watson, however, volunteered to defend this horse- thief, Moore told him tnat he had a bad case and that his client mi,s^ht hang. The Judi^e, however, was confident of his power before a jury, and the case came on. Upon the ari^ument Judge Watson spread himself in a wild flight of oratory, but all in vain, for the jury stayed with Moore and brought in a prompt verdict for conviction without limitation, and Judge Watson's first client was hanged. Tpon the retirement of Judge Watson, Craven 1'. Hester, Esq., was appointed in his stead. Judge Hester was a native of Indiana, where he had studied law and practiced it for some years before coming to San Jose. He brought to the bar of San Jose a fine reputation as a lawyer and as a man of high sense of pro- fessional and personal honor. His appointment in 1859 to Judge Watson's vacant seat gave general satisfaction and when the general election came a year later he was chosen to serve for a term of six years as District Judge. A great many important cases were tried before Judge Hester and the ablest lawyers in the State of California practiced in his court. The sessions of the District Court were held in the State House until it was destroyed by fire in 1853, when the county provided them with quarters in the frame building which was recently removed from the southeast corner of Second and San Fernando streets. There for several years Judue Hester held his court. There occasionally came such lawyers as Lockwood and Randolph and Baker and other brilliant men from the bar of the State. When the judicial term of Judge Hester expired he was not re-elected, and as T am told, for a peculiar reason. In the district of Judge Hester there were many lawyers of several degrees of merit. The leader of the San Jose bar was William T. Wallace durins" the fifties. The leader of the Monterey bar was D. R. Ashley, and of the Santa Cruz bar was R. F. Peckham during the same period. This trio of lawyers each worked hard at their cases, tried them well, and in consequence, were very successful each at his own bar. Their success made other lawyers of less studious habits jealous, and as the time for another election came on. they spread the campaiirn rumor that this trio of lawyers "owned" Judge Hester and that he always decided their way. The opposition nominated Samuel Bell McKee upon this issue and succeeded in electing him. Accordingly Judge McKee became District Judye in 1858, and remained so until the change in the district made in 1872, by which the old Third with some variations became the Twentieth Judicial District and David Bclden, Esq., was elected 'as Judge. The year 1(872 marks the opening of a new era in the history of the bench and bar of California. The codes were in that vear adopted and more settled forms of procedure began to prevail. The twenty-six years which intervened between the American occupation and that date belong to one epoch ; the twenty-eight years which have passed since the adoption of the codes, form another. With the latter it is not the scope or purpose of this article to deal. The writer of this anecdotal sketch of the Early Bench and Bar has felt himself reasonably secure behind the mists of tradition, and he deems it the part of wisdom to remain so and not tempt contradiction by entering upon the recital of veracious tales of existing courts or of niaii\- living members of the profession to which he has the honor to belong. —-JOHN E. RICHARDS. San lose. Cal. COMPLETE LIST OF CALIFORNIA LAW BOOKS i '^ cjb ^ s5b (^ f^s 4& G^ (^ ^ HISTORY of the BENCH and BAR of CALIFORNIA »«? awvers. E. W. McKinstry; William T. Wallace; M. M. Estee ; The Editor 377 Seniors of the Collective Bar. The Editor 771 Some of the Strong Men of Today. The Editor 617 Stephen ^L White— In Memorlam 1137 The Advi'Dturous Career of L. A. Norton. The Editor 593 The Birth of the Commcmwealth. I'rofessor Rockwell D. Hunt 35 The Bonanza Suits of 1877. John H. Burke 95 The (,'alifornia Code of Laws. The Editor 191 The Death Penalty for Larceny. The Editor 75 The Early Bench and Bar of San Jose. John E. Richards 1107 "The Field of Honor." The Editor.. 1^27 The History of the Mining Laws of California. John F. Davis 279 The Horace Hawes Will Case. The Editor 213 The Junior Rank. The Editor 993 The Remarkable Contempt Case of Philosopher Pickett. The Editor 367 The Celebrated Will of James G. Fair. The Editor 335 The State Supreme Court From Its Organization 349 The Strange Story of an Old Bank Deposit. The Editor 197 The Treaty of Guadalupe Hidalgo and Private Laud Claims. John Cur- rey 57 The Tragic History of the Sharon Cases. The Editor 173 Veterans Surviving in 1900. The Editor 483 BIOGRAPHICAL SKETCHES Abbott, John E 553 Abbott, William M 993 Acker, N. A 993 Adair, A. Aird 772 Adams, A. C 662 Adams, Charles A 993 Adams, Frederick 771 Adams, John Quincy 975 Aiken, William H 772 Aitken, John R 663 Alexander, D. E 773 Al(>xander, John K 663 Albery, K 773 Aldrich, Hugh S 993 Allen, M. T 665 Ames, Fisher 773 Anderson, James A 774 Anderson, W. A. (Sacramento) 774 Anderson, \V. A. (Woodland) 995 Anderson, William H 993 Andrews, II. P 994 Andrews, Lewis W 995 Angcllotti, F. M 665 Annable, E. R 774 Armstrong, John W 665 Ariiot, N. D 666 Archer, Lawrence 528 Austin, H. C 975 Avery, Russ 995 Babcock, (Jeorge 777 Baggett. William T 777 Baker, E. D 431 Barclay, II. A 777 Barker, Donald 996 Baldwin, Joseph G 559 Baldwin, Llovd 542 Banning, Edward J 995 Barham, John A 778 Barnard, Archibald 781 Barnes, Wm. II. L 617 Bartnett, Walter J 996 Bates, Joseph C 781 Beard, J. S 667 Beattv, William A 996 Beatty, William II. (Chief Justice)... 658 Beggs, William M 997 Belcher, Edward A 667 Belcher, Isaac S 541 Belcher, Richard 997 Belknap, D. P 783 Bell, Aaron 668 Bell, Harmon 781 Bell, Horace 782 Bell, Theodore A 998 Bennett, Nathaniel 445 Bergerot, P. A 1001 Berlin, F. A 783 Bicknell, John D 619 Biddle, J. H 998 Billings, Frederick 467 I'.ird, Calvert T 783 I'.lake, M. C 551 inaiH-hard, James II 784 I'.laiKliiig. William 550 P.lcdsoc, P.eiijamin V 1001 P.ledsoe. Robert E 784 Hoalt. Jidin H 785 P.oltoii, A. E 786 Booth, A. G 789 Booth, Ilenlev <' 1002 Bordwell, Walter 789 Bowden, Nicholas '(89 Bowden, Wiliam A 1005 Bower, E. C 790 l',ovtl. James T 524 Brant, Allan 998 Bridgford. E. A 669 I'.rittain, F. S 791 Hri>heck. William 1 1002 Hroughton, Howard A 1009 Brousseau, .Iiilius 791 ISrown. F. H 1001 Brown. U. W 791 Brunson, Anson 670 Brusie, Judson 1002 Buck, (Jeorge 11 671 Buekles. A. J 672 Budd, James II 792 Budd, Joseph II 675 Bulla, Robert N 975 1146 History of the Bench and Bar of California. Huiks, Paul 1005 Burnett, Albert G 075 Burnett, Peter H 451 Burnett. W. C 7'.)7 Burchard, Daniel W 792 Bush, E. li 075 Butcher, William P 795 Byrne. Heury II 442 Caiiwalader, George 401 Cahill, U 797 Callen, J. S 1010 Campbell, Alexander 514 Carey, John T 798 Carothers. Thomas L .->() Clarke. Kobert M 1010 Clarken. U. M ,S02 Clciiiclir. Henry X 1(105 Clciiicut. K. P S05 Chiiiic. Thomas J ,S05 CraifT. William T 1010 ( "rot hers. (Jeorfre E 1017 Crothers, Thomas G 1021 Cobb, C. W 1009 Cobl). Moses G 806 CofTey. .lames V 676 CofTroth. .lames W .-)82 Cole, Cornelius .529 Cole. Willoufihby .S07 Cooper, E. C . . ." 1009 Conlan, Charles T 1010 Comte, Aujrust 807 Conner, Henry 808 Conrey, N. P t 679 Coogan, T. C 811 Cook, Carroll 679 Cook. Elisha 442 Coombs, Frank L 811 Cooney. M 811 Corcoran. John M 680 Cormac, T. E. K 812 Coulter, W. A 81.3 Countryman, It. II 1013 Cres\v(,dl, H. T 976 Cross, Charles W 813 Crowley, T. J 813 Currey, John 483 Curtis, N. Greene 464 Curtis. William J 814 DaiuKcrlielil. AVilliam P .542 Dainxerfield. William K 683 Danni-nbaum. Arthur J 1013 I)au«herty . (J. A 814 Davis, Edwin A 087 Davis, Charles Cassat 814 Davis, Henry II 814 Davis, John F 680 Davis, J. W 684 Davis. William It 815 Day. W. S 687 Deal. W. E. F 819 De Golia, George E 810 De Haven, John J 6.58 Delmas. I). M 625 De Long, D li 1014 Del Valle, R. F 825 Denson, S. C 767 Deuprey , Eugene N 820 Devlin; Frank R 1014 Devoto, James A 1025 De Vries, Marion 1013 Duflf, W. L 820 Dibble, A. B 549 Dibble, Henry C 823 Dickinson, John H 823 Dillon. Henry C 824 Dockweiler. Isidore B 1018 Donnell, John A 823 Donohoe. Denis. Jr loi4 Dougherty. Samuel K 691 Dorsey. Jesse R 1017 Dow, W. A 823 Dovle, John T 518 Dumcy, M. C 825 Dunand. Louis F 976 Dunn. Chauncey H 826 Dwindle. John W 465 Eaton, (>. V 1617 Ecker, W. H. C 826 Edgerton, Henry o70 Eells, Charles P 826 Elliott, C. A 1U17 Emmet, C. Temple 4.58 Estee, M. M Sj^J Estes, Gustavus K 1"18 Evans. Oliver P Sj^S Fairchild. James D I'jl? Felton. John B ojjl Ferral, Robert V-.i Field, Stephen J ^_i Fifield. William II Finn. John F Fish. William A Fitzgerald. W. F Flint, Frank P Foltz. Clara S. Foote. L. H. .. Forbes. E. A. . Ford. Henry L Ford. Tirey L. Foulds. John \ 835 8.35 1021 6o 1022 828 835 832 836 836 837 Foulds. .lonn i: ":^.- Fowl.-r. Robert R II.'--- Fox. Charles N. 00 Fredericks. John D 1"1^ Freeman. A. C ^^ Freeman. Edwin %\ 2°^' Fry. Fred W »:^« Gage. Henry T »^» (iale. D. R «42 Gallagher. James L l"JJl; (Jalpin. Philip G »46 Garbcr, John <>-!' (Jardner. W. M l^>^a Gates. L. C ^-^8 ♦Gear. George D lO-^l Gear. Iliram L ^j^ Gearv. Thomas J "-il (Jeil.' S. F S-*"' (ieis. Ben F l"-6 Gesf ord. Henry C 980 Gett. William A 1<>25 (iibson. E. M <>9-5 (iibson, James A 704 Gillett. J. X S41 Glassell. Andrew ■• 841 Goodfellow. W. S 649 Goodrich. Benjamin 846 Gottschalk. C. V 69.i Gosbev. I*. F 8.50 Goldner. Alfred C 849 Gooding. H. C 845 Gordon. Hugh T 979 Goudge. Herbert J 1027 Goubl. Will D S..:i Grant, Gus G. 1095 Grant. W. H 692 (Jrant. William 1090 (Jraves, J. A .8.53 Graves. Walker C 8.50 Gray, Giles H ,8.53 (Jrav. John C 695 Gray. Rosco(> S ,8.54 Greathouse. Clarence R 5.5.3 Greene, William E 699 Gregg. Frederick W 10.33 Griflith. Hansford B 1026 Gunnison. \. J 527 Gntsch. Gustav 1027 Haas. Walter F 1028 Hairer. John S 447 Hall, E. S 8.54 Hall. Frederic W 8.54 Ham. B. D 707 Hambly, Francis J. H 1030 Hanlon. Charles F 8.54 Hargrove. Robert Lee 1029 Harlan. Paul C 1030 *After the notice of Mr. Gear on page 1021 had been printed, he was nominated by the President to be Second Judge of the Circuit Court of the First Circuit of the Territory of Hawaii, and the nomina- tion was confirmed l>y the United State.s Senate on the 2d of March, 1901.— Editor. History of the Bench and Bar of California. 1147 Harmou, John 15. . Harrier. L. G HarriniMii, Ralpb C Harrison, Ralph C Hart, 10. C Hart. W. H. H Hastings, S. C Harris, Will A Hassett. M. C...... Hastings, Horace M Hatch, Jackson Haven, James M Haven, Thomas E Hawes, Horace . . > Hawes, Horace, Jr .. Hawes, Horace (Fresno). Hawkins. X. A Hawks, W. W Havmond. Creed Haves, George R. B Hazard, Henry T t),S3 1082 4.")7 ooJ. 1U31 GGU 662 707 857 454 ■ ■ ; : 863 867 860 ■ ■ ■ ■ 983 860 ; 1031 21.3 217 860 863 593 580 550 ; 867 Healey, Benjamin ^[j^ Hehbard J^C. B ■.■••• ^Jg Heller. L,. S cfj-j Helm. Lynn ■ • .f.H^ Henderson, John H ^'^ Hendrick. E. W.. • f^ Hendrickson. William, Jr i"|>- Henley, Barclay ^^^, Herrin. William F ^•^•' Herrin. William J Hewitt. L. R.-.. Hevdenfeldt. Solomon ^;J' HeVnemann. . Alexander ^«i2 Highton, Henry E ^V,| Hilborn, S. G -,;,:,., Hiu. A. w.--; ;::; ^865 Hinckley, A. G • -.,,„ Hinkson. Addison C ' '° Hittell, Theodore H »!|?^ Hizar, J. C • . • ■ -,.,./., Hodghead, Beverly L ^'^-^ Hoefler, L. M %^, Hoffman, Ogden 3' r Hoge. Joseph P. •^"•_? HoUaday, E. Burke l'«| Holladay, Samuel W i^i Holland, Nathaniel '..'*•' Holloway, James B ';i| Holl, S. Solon »/./ Holmes, Isaac E ^"" Holton, George M '^j.., Hornblower, F. A °'V^ Hosmer, John A ^,' Y Houghton, S. O odi Hubbell, Stephen C p.';f Horton, R. Landon l^-^* Hudson, Rodney J i\r, Hughes, Joseph W ' J,- Huston. Arthur C... \\-}^ Hutchison, Edward L ^'J',., Hutton. A. W 'J-i Hunsaker, William J "i* Hunt, A. B %Ll Husted, F. M • li^ Hvatt. Thomas Hart, Jr »';». ll'ybuKl. M. H '^« Irvine. Leigh H.... f* Jackson, Charles H » ' •' Jackson, John P « ;:; Jacobs, Myer p.')' James, William P l'^*^ Jarboe, John R •'' ;.' Jarrett, I. Edward 'IJ'" Jones, Albert F ^\' Jones, Edward I ' ^7 Jones, George L ^'"" Jones, Johnstone °°/, Jones, Julian P i^^l Jones. T. E 'JT, Johnson, Matt F •^';*;* Johnson. Sidney L ••^2 Johnston. William A "1' Jordan. William H ^'« Jiidson. Albert H f*^- Jury. John G |"-^1.' Kahn, Julius -^"gi Kelly, Frank P J^?.Z Kemp. John W l''-^.' Kendrick. William T ^^Ji Kenney, Elizabeth I I'j-.' ', Kinkade, John T •'•^•.^ Kirkbride, C. N I"-" Landt, S. V 883 1038 . 683 . 473 655 . 1038 . 887 . 1(142 . 1038 . 1042 . 884 . 887 , . 648 . . 1041 Lane. Franklin K.... Larkius, E. O Latham, Alilton S.. Latimer, L. D Lea, Clarence F.... Lee, Bradner W.'... Leishman, David .. Leonard, F. A Leppo, J. R Leviusky, Arthur L Lewis. T. L Lieb. S. F Lindsay, Carl E Linforth, Walter H I'J;*.^ Lippitt, Edward S ;'•>:; Llovd, Warren E ^"-'- Llovd, R. H Lockwood. Rufus A... Loewcnthal. Max Logan, J. H JL^^ Lorigan, W. G. 'J Loughborough, A. H -^J-Z Luce, M. A l\\ Luckel. Louis ^"^^ Magoffey, John H... ^laguire, James G... Mahan, James P ,. Mahan, Lawrence E J'J^^^ Mannon, J. M '„„ Martin. Edward p'S Mau, Charles A \\^^% Mavo. Henry B 1"^*» Merrill. Annis ^°? Met calf. Victor H ««;? Middiecoff. w. w 1'^;;;*. Henry E 637 577 888 718 1045 722 1045 Mills. Henry E ^"J" Mitchell, John W 1'^;'* Mit.hell. Robert B.. f;^[J Mnnteith, George W ^l.'^-: Montgomery. Zachary •J:^' Md.idv, Frank *-^ Mdcre, A. A., Sr Morehouse. Henry V Mi.r.'land. William W Moruan. Charles O Moruanstern, Alfred J Mdrgenthal. A. Morrison. Alex. F Morrow, William W .M,>rtiiner, Charles White Mowrv, Lyman I Mueller. Oscar C Mulvihill. Henry Mtiiison. (iilbert D Minphey, J, L Minphv. William G Murray, Hugh C Mvri.k. M. H McAllister. Hall MeClellaii. Clifford McClellaii. R. Bruce MeClellaii. R. Guy McConias. C. C. .. :\I,('ounell. John R *^" McClure. David J^j^.lj 594 l(t45 899 9tl.j i,j3 90(t 10.54 984 904 655 903 911 1058 1058 984 904 988 435 726 417 1045 1049 543 888 436 890 MeCoy. A. M McCullough. John G McCutcheii. A. U. .. McDonald. J. Wade •;j;:V McI lougall, James A ;^;j':? McElroy, J. P •• Tjli McEnerney, Garret W \f/l McFadzean. Daniel ^^*^ McFarland. Thomas B '"'' McCowan. Frank ••| McGraw, E. W '^J .\ McKee, Robert L |.' - McKeinia, Joseph ir.' McKinlcy. J. W '-, McKinstry, E. W ^;!; McLachlan. James '•- McNab. John L 1""'; McNuUa. Thomas •;- McNutt. Cyrus F ; _ Naphtaly, Joseph ; _ ' Needham. James C. . " •" Nowbv. Nathan Newb'urgh. Henry .. Newlands. Francis G Newmark. Nathan Norton. Edwanl M .,j- Norton. ("apt- ^'- -^ kko North. John W -"^^ 10.57 10.58 IKIS li34 1061 1148 History of the Bench and Bar of California. Nowlin, Thomas W 90S Nusbaumer, Emil 915 Nvo, Stephen (J T25 Gates, James W 912 Ogilen, Frank H 7»> Oneal, Lotiis '. 1057 Oster, Frank F 730 Otis, George E TctS Parsons, Levi 470 Patterson. William H 544 Patton, Charles L 1061 I'atton, Joseph H 1061 Peixotto, Edgar D 1067 Pence, Wallace M 911 Pendegast, W. W 593 Perkins, Thomas Allen 1062 I'eter, L. N 1061 Phibbs, George P 911 Phipps, W. T 911 Pierson, William M 641 I'irkev, Oval 733 Pistolesi, Louis C 1063 Poage, W. G 1062 Porter, Frank M 915 Post, Charles N 916 I'owell, Howell A 917 Pratt, O. C 441 Preston, Isaac H 917 Pringle, Edward J 543 I'urington, W. A 912 Randolph, Edmund 452 Uea. E M 1064 Redding. Joseph D 917 Ueddv, Patriok 538 Reed, Geo. Wm 919 Reid, D. G 918 Reid. Henry H 920 Reynolds, John 734 Rhodes, A. L 73o Rhodes. William H. ("Caxton") 54o Richards. John E 922 Richardson, Owen D 10i2 Rives. James C 1071 Robertson, R. F 1063 Rol)inson, A. K 922 Robinson, Tod 4o9 Robinson, Walter H 1063 Rogers, Earl 1067 Rolfe, H. C 735 Rolley , George T 1064 Ross, Erskine M 6-i< Rothchild, J. M 922 Rothschild, Joseph 919 Ruddock, J. C 921 Ruef, A 1064 Russell, John H 923 Russell. Samuel B 1>J<1 Rust. Richard C 736 Rvan. Frank D 924 livland, C. T 548 Salomon, E. S 987 Sanborn, M. E 927 Sanderson, A. A in-i Satterwhite, John 10<1 Sawyer, E. D 520 Sawyer, Lorenzo 569 Scarborough, James G 10^2 Schillig. Lawrence 1072 Schaertzer, Henry C 1076 Schlotterback, P. L 1075 Searls, Xiles 494 Sea well, James M 739 Selvage, Thomas H y24 Sevier, Denver 928 Sevier, Ernest 929 Shaw. A. E 1076 Short. Frank H 1075 Shortridge, Samuel M 1079 Silent, Charles 933 Simpson, C. M !j^4 Stearns, Frederick W -'^'j^*^ Sullivan, Jeremiah F 74 1 Sumner, Charles E 988 Scheeline, S. C ".'28 Schell, George W 740 Seymour, Arthur M 1092 Shadburne, George D 929 Shaf ter, James M 575 Shatter, Oscar L 573 Sharpstein, John R 554 Shaw, Liicien 743 Short, M. L 744 Slauson, J. S 930 Sloan, E. W. F 478 Smith, B. N 744 Smith, Lucas F 747 Smith. Sydney V 555 Stephens, A. M 748 Stephens, William I) 934 Sterry, C. N 937 Stewart, T. M 930 Stewart, William M 505 Stone, Frank M 938 Stonehill, Edward B 548 Strother. John P 937 Taft, Fred H .^ 942 Tapscott. James R 1080 Ta vlor, Clav W 540 Taylor, Edward R 648 Tauszky, Edmund 943 Temple, Jackson 660 Thatcher, Arthur J 1081 Thom, Cameron E 943 Thomas, Charles W 943 Thornton, James D 751 Thornton, T. C 1081 Tiugley , George B 590 Toland, Thomas 989 Trask, D. K 751 Trask, Walter J lo82 Treadwell, J. P 589 Trout, James M 752 Tuttle, Charles A 553 Tuttle, F. P 945 Turner, J. W 944 Tuska, Waldermar .1 945 Tyrrell, John R * 1082 Udell, Charles 9^6 Unangst, Edwin P 754 Valentine, L. H 950 Van Clief. Peter 456 Van Duzer, A. P 949 Van T)yko. Walter 495 Van Fleet. William C 755 Vnricl. 11. H. F 946 Varicl. William J 1083 Vau,i;lian, Marvin T 1084 ^■r(M)IuMn. Henry 539 Wahrlialtig. M. S 951 Wallace. W. B 7u( Wallace, William T 404 WalliiiiT. J. M 757 Walthall. J. M 1085 Ward, Shirley C 1084 Wascerwitz, M. H 108o Waterman. J. F 951 Waters. Russell J 951 Wavmire. James A 952 Weaver. J. IL G 957 Wehe. Frank R 958 Wclrh, J. R 1086 Wcvl. Bertin A 1087 Wellborn, Olin 657 Wells, G. Wiley 964 Wells. John J 1086 Wells. T. H 758 Whc.iton, M. A 958 Wheeler, C. M 964 Wheeler. E. D 555 White, Clinton L 1092 While, Stephen M 642 "In Memoriam" 1137 Wilbur. Curtis D 1087 Wilev. II. R 968 Wilcox, Edwin A 108/ Wilcox. U. E 1088 Williams, B. T 765 Willis. F. R 968 Wilier. George F 1088 Wiiinns, Joseph W 449 Wils(,n. Charles E 967 Wilson. C. N 969 Wilson. Percy R 969 Wilson. Samuel M 566 W Is. S. D 973 Wooilworth. Marshall B 1088 Works. John D 646 Works. Lewis R 1«'88 Wrelman. N. E 1091 Wright, C. C y^O Wright, Selden S 540 AVitten. C. L 9(0 York. Waldo M J-^9 Young. E. B 9(3 Younger, Charles B _974 Zumwalt, I. G 1092 History of the Bench and Bar of California. INCIDENTAL MISCELLANY 1149 Adams & Co.; great bank failure 447 Adventurous Career of L. A. Norton. .. u93 Alexander, E. P. ; reference G(>4 Alexander, Roy L. ; reference G64 Alcaldes; Authority and Influence of. . 27G Allen. Judge C. E.; "Early Bench and Bar of San Jose" 1126 Almond, William B.; Hittell's refer- ence; Richards' reference.s; XVII 1121 Almond, Judge William B.; Anecdotes of 1121 Angus, James S.; Pair will case 337 Appropriators; Rights of 506 Archer, Lawrence; wins, with Judge W. T. Wallace, a bad case 1118 Archer, Leo B. ; reference 529 Arnot, Raymond H (reference) 667 Ashley, D. R.; "Early Bench and Bar of San Jose" 1128 "Attorneys-General of California".... 357 Baggett. W. T; reference 431 Baker, E. D.; McDougald's tribute 469 Baker, E. D. ; reference 503 Baldwin, A. W. (reference) 560 Baldwin, Barry; reference 655 Barnes, W. H. L. Reference 679, 5.52 In Sharon case 176, 177 Hawes will case 216 Burton, John; First American Alcalde of San Jose; anecdotes of 1107 Bates, Joseph C; Hawes will case.... 2x6 Beard, Elias L.; "Early Bench and Bar of San Jose" 1x22, 1124 Beatty, Chief Justice; Mining Laws. 290. 319 Beatty, Chief Justice; death of Judge Terry 431 Beattv, Samuel G. : reference 527 Bell, Rev. S. B. (Harmon Bell) 781 Benham, Calhoun; Broderick-Terry duel 251 Bensley, John (reference) 519 Bergin, Thomas I. (sketch of Judge Sharpstein) 554 Bergin, Thomas I. ; reference 5.54 Bishop, Thomas B. ; reference 513 Bishop & Wheeler law firm; Fair will case 345 Black Will Case (Judge Sea well) 739 Blythe Estate, Case of (Judge Coffey). 679 Blythe Estate; sketch of W. II. H. Hart 857 Bonanza Firm of Mackay, Fair, Flood & O'Brien 336 "Bonanza Suits of 1877;" John H. Burke 95 Booker, Samuel A.; reminiscences 385 Booth, Newton; sketch of Lockwood... 580 Bowman, J. F.; Shakespeare's pla.vs. . 565 Boyd, Alexander (Sketch of Jas. T. Boyd) 527 Boyd, James T. ; estimation of Gen. McCullough 595 Bradley, H. W. ; reference 493 Bresse, Louis C. ; Fair will case 337, 341 Broderick, David C. ; Notice of 245 Broderick-Terry Duel of 18.59 2.51 Brown, Gratz K.; sketch of Geo. W. Monteith 3054 Browne, J. Ross; reference 289 Buckner, Jiidge R. B.; "Early Bench and Bar of San Jose" 1126 Buckner, Stanton; reference 388 Budd. James H. Fair will case .-{45 Bugle Song, The; Tennvson 461 Bulkhead Bill of 18(>0 477, 511 Bulkhead Bill of 1860 .564 Bulkhead Bill of 1853 447 Burbank, Calel); reminiscences 377 Burke, John H.; Bonanza suits of 1877 95 Burnett, Peter H.; reference 47 Suspends I'refect Hawes 215 Caminetti Act of 1S93 3'28 Campbell, Alexander; Fair will case. . . 216 Campbell, J. <". : reference 538 •Campbell, Judge John li. ; Judicial Con- test (sketch of B. F. Bledsoe) 1001 Carpeutier, 10. R.; Harry Bvrne's estate ". 443 Castillero, Andreas; discoverer of New Almaden mine 4.53 Cavis, James M. ; reference 594 Code Definition of Crimes; Wisdom of; Introductory Article; XV. Coffey; James V.; references 590 Coffey, Edward I.; reference 676 Coffey, Jeremiah V.; reference 676 Coffroth, James W. ; lynching of John Barclay 272 Cohen, A. A. ; reference 448 Collins, Geoi'ge D.; Wong Kim ark case 1099 Colton, D. D.; Broderick-Terry duel. 251, 261 Broderick Will Case 209 Colton, Walter, and "Colton Hall"... 1110 Common Law; Adoption of 47 Comte, August, Jr.; The Law Codes. . . 192 Congdon; George; reference 76 Conness, John; Report on mineral lands 30'6, 308 Constitutional Changes. Introductory Article; XV. Contempt Case of David S. Terry x6\ Cook, Eli; reference 442 Cope, W. B. ; reference 688 Cope, W. W. ; reference 542 Cora, Charles; killing of Gen. Rich- ardson 431, 448 Cornwall, W. A.; Gilbert-Denver duel. 228 Cornwall, P. B. ; reference 490 Courts of First Instance; Important Factors in Early History 1110 Cowles, Samuel; reference 527 Crabbe, Henry A.; Fatal Filibustering Expedition into Mexico; "Early Bench and Bar of San Jose"...*. 1124 Craven, Nettie R. ; the Fair will case 339, 345 Creanor, Charles M.; reminiscences. . . . 385 Crichton, W. D. (sketch of Hon. Jas. C. Needham) 1057 Crittenden, A. P. ; reference 52 Crittenden, A. P. ; Notice of 402 Crittenden, James L.; Death of Judge Terry 431 Crocker, Charles F. ; repair of Sutter's Fort 368 Crockett, Joseph B.; Pickett Contempt case *3,^0 Crosby, E. O.; notice of 48, 49 Crothers, George; the Fair will case. . 345 Crothers, Thos. G.; the Fair will case .337, 345 Currey, John; Tribute to Judge Van Clief 457 Tribute to Judge Sloan 478 References .589, 590 Treaty of Guadalupe-Hidalgo, etc. 57 Pickett Contempt Case 370, 373 D'Ancona; Dr. A. A.; ref(»rence 684 Davis. John F.; Article on Mining Laws 279 Debris Commission of California 327 Delmas, D. M.; the Fair will case 345 Denson. Oatman & Denson; the Fair will case .^45 Denver. General James W.; Notice of. 231 Duel with Gilbert 2'27 y, lOugene N.; reference 512 De Young, Charles: killing of bv Kal- loch .■ 513 De Young, M. II.; shooting of by Spreckels .513 De Zaldo. Don Ramon; Notice of (Pat- t erson ) .544 Dickinson, (!en. John H. ; reference.... 345 DiuHiiii'k. Kimball II.; last Alcalde at San Jose 1109 Division of the State; Gov. Latham's ^'ie\vs 475 Dodge. Henry L. ; reference 874 DonniM- I'artv of l.S4(; (Sketch of Wm. C. Murphy) 988 Donner j'arly. The; reference .5.33 Doiiolioe. Denis; British Consul at San Francisco; reference 1014 1150 History of the Bench and Bar of California. 81 429 181 Dovle. John T. "Recovery of the Pious 1' uud, Kef erenco Dwinelle, John W. ; reference 48 The Law Codes 1>!;^ DwineUe, S. II.: Notice of 41; . Piclvett Contempt Case -wJ Duels. See "Field of Honor." _ Dunn, Francis J.; reminiscences {8( "Earlv History and Early Day Law- vel-s-IIon. M. M. Kstce ; W | Ellfs. E. F. AV.: reference • • . ■ -i^^ "Eloquence of the Far AVest —Col. Raker's speeches: reference 4._.4 Estee M. M.: Pickett contempt case., ^i • Earlv Day Lawyers f^-* Evans. Oliver P. : reference 4M The Sharon Case ■ l" Farish. A. L.; the Terry Contempt case Fair, James G.: Notice of . • • • Fallon. Captain Thomas: hoists the Flag at San Jose in 1846 HOi Flickinger, J. II.: "Early Bench and Bar of San Jose" 11^9 "Fair Trust Will Case" •>•« Ferguson, William I.: Notice of -44 Fatal duel with Johnston -40 "Field of Honor. The:" Historic Duels in California: The Editor --^ Denver-Cilhert —' P.n.derick-Smith -i- Uust-Stid^-er I-M 'I'evis-Lippincott —J' Johnston-Ferguson -■*'_' Kroderick-Terry -■*•' Field. Stephen J.; Opinion ui Sharon The Law Codes 1;*;^ Field, David Dudley: the Law Codes. l!».i Fitch, George K. ; reference ;j3( Fitch, Thomas; Duel with J. T. Good- man Ij^^:. Keminiscences of ^J' Foote, Gov. Henry S.; references. .444, uOb Ford, (Jen. Tirey L.: Hydraulic Mining •■••^" Franks, J. C: the Terry contempt case ^°^ Freelon, T. W. : reference 443-4 J. D. : reference -ISO Fry. Lelanil Stanford's r,.->4 Gage, Stephen T. Will Garber. John. Allusion to Hall McAllister 41i The Fair will case 34.'> Garniss, James R.: reference Goodman, Joseph T.: duel with Thomas Fitch '{'l'.) Gold Mining in Ancient Times: Pliny's Description -'•' Gorham, George C: reference 4'_':: Grand Jurv Svstem Modified 4'.m; Graves, J." A.; sketch of Judge P.run- son 671 (Jrav, Carleton: reference <'>'.''.» 0, 708 And See Baggett, W. T. Hamilton. Jo. ; references .">,S3. ."'>!t4 Ilartlv. James H. : Iinpeacliment of... .">!I4 Hastings College of the Law 221, 4.-.6 Ilavemeyer vs. Superior Court of San Francisco 6.")i> llaun. Judge Henry P.; extraordinary court scene 426 I lawks, W. W. ; Notice of 593 Hayes, John; throws Kearney from public platform 512 Ilayue. Ro1)ert Y.; Fair will case 345 reference 543 Hester, Judge C. P.: "Early Bench and Bar of San Jose" li.12 llengstler, Louis T.; Professor of Jurisprudence 222 Heron, Matilda; marries Harry Byrne 445 llcniii. \\llliam F.; Fair will case.... 345 Itercicnco 679 The Sharon cases 179, 180 Ilcsketh, Sir Thomas: reference 173 IliuliloM, H. E.: reference o-kl Judges as I'. S. Senators 409 "Ilistorv of the Mining Laws of California." Hon. John F. Davis. 279 Ilolladay, S. W.; "Military-Civil (Jov- ernment" 3 I I it fell's History of California. Story of a Revolting Case 273 Influence of Alcaldes 276 Early Days of Placer Mining 288 Holland, Nathaniel; Notice of 555 Hoge, Joseph P.; Pickett contempt case .369 Howard, Charles Webb; reference.... ."175 Hunt, Rockwell D.; "Birth of the Commonwealth" 35 Hume, Hugh; banquet to Judge Mc- Keiina 655 Humphreys, John T.: reminiscences.. 383 Hvdraulic Mining L'nder Caminetti Act 329 Johnston, Geo. Pen.; Notice of 243 Fatal duel with Ferguson 240 Jones. Charles T. ; reference ."»44 Jones. William Carey; e.stablishes school of jurisprudence 222 Juanita; woman hung by a mob 273 Judiciary— Federal and State 653 Jurv, John G.; "Lynch Law in Cali- fornia" 267 Infernal Machine Sent to Judge Field 428 Inscription on a Dog's Monument; Byron 374 "Irrigation Laws and Decisions;" John I). Works 101 Irrigation Law Remodeled: Judge Bridgfoid 670 Jessup Case. The: sketch of Judge Fox 704 .lohnson, James A.; Pickett contempt Lirysville: How the City Received Its Name: (sketch of Judge Field) 423 Mason, R. B.; First Military Gov- ernor. See Introductory Article. "Masters Who Followed the Pio- neers;" The Editor 559 Mastick, E. B.; reference 574, 575 Matthews, William; "Early Bench and Bar of San Jose" 1113, 1125 May, R. M.; First Judge of First Instance at San Jose 1112 Melone, H. C. ; "Earlv Bench and Bar of San Jose" 1119 Meredith, Henr.v; reference 506 Metcalf vs. Argenti et al 579 Metcalf vs. Argenti: case tried in Sau Jose 1123 Metson, William H.; reference 538 Miller, W. H.: U. S. Attorne.y-Gen- eral ; Sharon case 184 Mills, D. O.; Leland Stanford's will; (sketch of Judge McKenna) 654 Militarv-("ivil Government, 1846-50: Samuel W. Ilolladay 3 Mining Laws of California, History of; John F. Davis 279 Minor, Peter ().; "Early Bencli and Bar of San Jose" 1112 Missing P.ank Depositors: law for l)ul)lication 197 Mooii', A. A., Jr; reference !U)I) Moore. John 11.: "1-L-uiv Bench and Bar of San Jose" 1113. Ills Montague, W. W.: Pickett contempt <"ise :',73 Moore. Ben.; Reminiscences of .''.85 Moultrie. J. A.; "Early Bench and Bar of San Jose" 11 2(1 .Mind.pcli. F. B.: "Earlv Bench and Bar of Sau Jose" 1115 -McAllister. Matthew II ; .Notice of... 417 .McCoiUle. Judge Jos. \V.: "Our First Water Rights Decision" ItCl McCullotigh. J. <;.. Attornev-General: The Law Codes l'.)l McCnlloiigh. Joiin G.: Remarks on Death of Judge Sloan 47S .McDonald. Calvin B.: Account of Tevis-Lippincol t dud 2:!7 .McDonald. Calviir 1!.; line Iriliulcs to E. D. Bakei- 4;!4 McGowan, Edward; the 55 oluey, Warren: reference 542 Papy, J. J.; witticism about McAllis- ter famil.v 421 Parker, Samuel H.; reference 527 I'aierson, Van R.; Fair will case 343 Peachy, A. C; reference 452, 453 Reminiscences 411 Peck-Palmer Briliery Case; Catlin.... 503 Peckham, R. F.; "Early Bench and Bar of San Jose" 1127 Pence iV: Pence; San Francisco law firm: Fair will case 345 Pendegast, W. W.; the Law Codes 192 Perkins, George (J.; reference 002 Perle.v, D. W.; Judge Terry's law partner 249 The Broderick-Terry duel 248 I'erley, D. W-; Reminiscences of 384 Peyton, Balie; Reminiscences of 382 Pickett, Charles E.; Notice of 367 Remarkalile Contemi)t Case 367 Pierson, William M.; Fair will case... 345 Pillsbury, E. S.: Fair will case 345 Pious Fund, Recovery of; John T. Doyle 81 Pixlev, Frank :M. : Reminiscences of.. 383 Broderick Will Case 210 Phelau, James D.; reference; (sketch of J. roposed reform 518 Ralston, William C.; reference 486 Randolph, lOdmund: reference .52 Reardcn, T- II.: Broderick-Terr.v duel 247 Recoverv of the Pious Fund of Cali- fornia : John T. Doyle SI Redding. Joseph D. : the Teri'y con- tempt case ISl R'irst County Judge of Sanla Clara: many anecdotes: "Eailv Bench and Bar of San Jose" 1114, 1117 Kced. 'I'homas B.; reminiscences 395 Keid. D. (! ; "Our First Water Rights Decision" .'tOl Keid. Henry II.: Introductory Article. XVI KcuiaiU.-ilde Contempt Case of Phllos- o|>lier Picket I .307 Kcniiniscences of .Imlges iind Law.vers 377 Rhodes, A. L. : Pickett contempt case. 309 Rhodes. A. L. ; reference 527 -And s(>e lut roductor.v Article. Kichards. John E.: "Earlv Bench and Bar of San Jose" 1 i07 Kilcy. Bennet; Last Military (Sov- ernor. (Introductory Article. » Kilcv. (Jov. B.: Overthrow of "the State of San l-'rancisco" lill Uoss. Judge E. M.; reference; (Inlro- dm-tory Articlel- Reference 185 Uuef. Abraham: the Fair will ca.se... ."{45 I! viand. C. T- : "Early Bench and Bar of San Jose" 1112 S.indei'son. Silas W. ; Picdvctt con- tempt case 372 1152 History of the Bench and Bar of California. Sanford, E. K.; "Early Ucncb and Bar of San Jose" 1124 San Jose. The Early Bench and Bar of; John E. Richards 1107 SargcHt, A. A.: reference to Jno. II. McConnell 437 Satterlee, John; reference 446 Sawver, E. D.; allusion to Hall Mc- 'Allister 417 Scarlet Letter, The 246 Selovev, A. A.; Notice of ^48 Seniors of the Collective Bar 771 Shakespeare's Accuracy on Legal Sub- jects 519 Shakespeare's Plays, Authorship of. . . 565 Sharon Cases, Tragic History of; The Editor 173 Sketch of W. M. Stewart 506 Sharon. William. Notice of 173 Interesting History; sketch of A. Merrill 486 Sherman, (Jon. William T.; Vigilance Committee of '56 270 Shortridge, S. M.; Fair will case 345 Slack. Chas. W. : references 221, 339 Slickons: letter of Zach Montgomery.. bi>6 Smith. Alexander; Pathetic Story of; The Editor 197 Smith. Capt. N. T.; Leland Stanford's will 654 Smith. Sidney V.. Jr.; sketch of Sid- ney V. Smith 555 Sonntag. Henrv P.; banquet to Judge McKenna 655 Speaker of the Assembly; Memorable Contest of 1861 537 Sprague. Royal T.; Pickett contempt case 369 Stackpole, T. M.; the killing of Judge Terrv 185 Stafford. William M., The Lord of Ilardscrabble 1118 Stanford University Constitutional Amendment; sketch of Geo. E. Crothers 1017 Stanford. Leland; Judge McKenna's relation to his will 654 Last will of 654 The Law Codes 191 Stanlv, Edward; (sketch of J. G. Baldwin) 559 Staples, D. J.; (sketch of Lloyd Baldwin) 542 Stebbins. Rev. Horatio; death of O. L. Shaffer 575 Stewart. William M.: free mining. .284, 309 Stow, W. W.; references 544, 545 Strange Storv of an Old Bank De- posit; The Editor 197 Strong Men of Today 617 Sturdivant. Robert O.; (sketch of Montgomery) 537 Swett. John: (Zach Montgomery) 537 Sullivan, Judge J. P.; the Sharon cases 176, 178 Sunday Law; Theaters Closed in the Sixties: sketch of S. S. Holl 871 Summerfleld, The Case of; Caxton's Strange Story 546 Supreme Court of California; Com- plete List of All Judges 349 Taggart. Grant I ; Pickett contempt case 369 Tauszky. Edmund; Judge Coffey's de- cisions 676 Telescopic Eve. The; Caxton's Story.. 546 Terry. David S. ; Notice of 249 Broderick-Terry duel 245 Terrv, David S.; the Yoakum cases; "S. S. Holl 872 Terrv. David S.; A. E. Wagstaff's ■"Life" 173 Temple, Jackson; the Law Codes 193 Tevis. Llovd ; reference 874 (Sketch of Annis Merrill) 486 Teschomacher, Henry F.; Gilbert-Den- ver duel 230 Thomas. A.; association with Jackson Temple 660 Thornton, James D.; Pickett contempt case 372 Tompkins, Edward; the Law Codes. 192, 193 Tracy, F. P.; Reminiscences 400 "Chief Justice Beatty 660 "The Lord of Hardscrabble;" "Poem" 1118 "The State of San Francisco;" see "Early Bench and Bar of San Jose" 1110 Tingley, George B.; "Early Bench and Bar of San Jose" 1113 Tragic History of the Sharon Cases; The Editor 173 Tuttle, Charles A.; the Law Codes... 192 Tug-Boat Marriages; Judge M. T. Al- len 665 Turner, Judge Wm. R. ; trouble with Judge Field 425 Tyler, George W. ; "Adoption of the Common Law" 48 The Sharon cases 175, 177 Unclaimed Bank Deposits; law for publication 197 Union I'art.v, Organization of; (sketch of Judge Van Dyke) 496 University of California; (sketch of Judge Van Dyke) 499 Universit.v of California, Legal Edu- cation in; Gustav Gutsch 221 Unprecedented Judicial Contest; (Sketch of B. ¥. Bledsoe) 1001 Van Dyke. Walter (sketch of Tingley) 543 Veterans Surviving in 1900 483 Vigilance Committees of San Fran- cisco 274, 276 Voorhies, William; "Early Bench and Bar of San Jose" 1112 Vrooman Act, The 539 Wagstaft'. A. E. ; "Life of D. S. Terry" 173, 185 Walker, Gen. William 454 Wallace, William T.; the Sharon cases 176 Reference 594, 2X1 The Havemver case 659 Letter of H. E. Highton 4uJ Reminiscences 405 The Pickett contempt case.... 370, o<3 Wallace, William T. ; "Early Bench and Bar of San Jose". .1113, 1114, 1118 Washington, B. F.; reminiscences.... 412 Water Rights; first decision in Cali- fornia 861 Watkins, A. A.; banquet to Judge Mc- Kenna 655 Watson, Judge John H.; "Early Bench and Bar of San Jose" 1113, 1114 Webster. Daniel; Independence of ine Judicary; (Introductory Article.) Weeks, James W. ; Alcalde at Sau Jose in 1847 1109 Westmoreland, Chas.; arraigns Judge Turner 427 White, Charles; Alcalde at San Jose in 1848 1109 Will Cases; David C. Broderick 209 Horace Ilawes 215 Ja nies (J. Fair 335 James I'.lack; (Judge Seawell)... 739 Williams. Thomas II.; Broderick will case 210 Wilson, S. M.; the Pickett contempt case 369 Wilson & Wilson; San Francisco law tirni: the I'nir will case 345 Winans. Joseph W.; reminiscences.... 410 Woman Ilnng by a California Mob.... 273 Wong Kim Ark Case; Citizenship of <'hin(>,se 1099 Wood worth. Marshall B.; "Citizen- ship of Chinese" 1099 Works, John D.; Irrigation Laws and Decisions of California 101 Opinion in Sharon case 186 "Wright Act." relating to irrigation; Sketch of Judge Bridgford 670 Same (sketch of C. C. Wright)... 970 Vale. Gi-egory; Broderick will case... 211 "Mining Claims and Water Yale, Gregory; secures Judge Almond's demijohn 1121 Rights;" (Judge Davis' article)2S7, 307 Yates. A. I>. ; "Early Bench and Bar of San Jose" 1113. 1125 Yoakum, Bill and Tom; lynching of; S. S. Holl 872 Yoell, J. Alexander; "Early Bench and Bar of San Jose" 1125 Yontz, John; First Sheriff of Santa Clara County 1113, 1119 1 /'•'••I I' J